1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT JOHANNES, 

et al., 

Plaintiffs, CIVIL ACTION NO. 14-CV-11691 

vs. DISTRICT JUDGE LAURIE J. MICHELSON 

MAGISTRATE JUDGE MONA K. MAJZOUB 

HEIDI WASHINGTON, and 

DALTON SANDERS, D.D.S., 

Defendants. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

Plaintiff Robert Johannes, currently a prisoner at the Gus Harrison Correctional Facility in 

Adrian, Michigan, filed this proposed class action under 42 U.S.C. §§ 1983 and 1988, on behalf of 

himself and all other similarly situated prisoners, against Defendants Heidi Washington (Director 

of the Michigan Department of Corrections (MDOC))1

 and Dr. Dalton Sanders (a general dentist 

in charge of Plaintiff’s dental care). Plaintiff Johannes filed an Amended Complaint adding five 

additional Plaintiffs as proposed class representatives: Michael Woroniecki (incarcerated at the 

Muskegon Correctional Facility), Phillip Turner (incarcerated at the Chippewa Correctional 

Facility), Joe Evans (on parole as of June 30, 2015), Roger Stephenson (incarcerated at the 

Muskegon Correctional Facility), and Max Rogers (on parole as of July 8, 2014, but currently in 

custody in Porter County, Indiana).2

 (Docket no. 37.) Plaintiffs allege that the MDOC has a 

 

1

 Plaintiff originally filed his Complaint against MDOC Director Daniel Heyns, but the 

Court has substituted Ms. Washington as a Defendant pursuant to Fed. R. Civ. P. 25(d).

2 The Parties have stipulated to the dismissal of Plaintiff Evans’s claims (docket no. 110), 

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policy or practice of 

denying dental care, including failure to ensure timeliness and completed required 

dental treatment to maintain proper occlusion, ability to masticate food and eat, 

prevent general health problems from malnutrition, prevent loss of teeth, prevent 

periodontal disease, prevent loss of multiple teeth destroying healthy dentition, 

provide timely competent restorative treatment, maintain timely prophylaxes 

schedules to maintain healthy oral cavity heath, prevent unnecessary teeth loss by 

timely restorative and periodontal treatment, prevent pathologic changes in the jaw 

joints by timely competent general restorative dentistry. 

(Docket no. 1 at 2-3.) Plaintiffs seek injunctive relief requiring Defendants to provide adequate 

dental care. (Id. at 31-32.) 

Before the Court is Defendants’ Motion for Summary Judgment.3

 (Docket no. 116.) 

Plaintiffs filed a Response (docket nos. 120-21) and an Amended Response (docket nos. 123-24) 

as well as an Errata Sheet (docket no. 126). Defendants filed a Reply. (Docket no. 129.) All 

pretrial matters have been referred to the undersigned for consideration. (Docket no. 15.) The 

undersigned has reviewed the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 

7.1(f)(2), and issues this Report and Recommendation. 

I. Recommendation 

 

and the undersigned has entered a Report and Recommendation recommending the dismissal of 

Plaintiff Rogers’s claims (docket no. 117). 

3

 Also pending in this matter are Plaintiff’s Motion for a Qualified Protective Order to 

Allow Production of Dental and Medical Records of Class Members to Plaintiffs’ Counsel (docket 

no. 55); Plaintiff’s Second Motion to Compel (docket no. 57); Defendants’ Motion to Strike 

Plaintiffs’ Expert Witnesses (docket no. 79); Plaintiffs’ Motion to Extend Hours and Days for 

Depositions of Certain Prison Officials and their Motion for Immediate Consideration thereof 

(docket no. 86); Plaintiffs’ Third Motion to Require Production of Documents for Seventh 

Through Twelfth Discovery Requests (docket no. 96); Plaintiffs’ Fourth Motion to Require 

Production of Documents for Fifteenth and Sixteenth Discovery Requests (docket no. 106); and 

Plaintiffs’ Sixth Motion to Compel (docket no. 130). Additionally, because the Court has not yet 

adopted or rejected the November 6, 2015 Report and Recommendation, Defendants’ Motion to 

Dismiss (docket no. 77) remains pending. As discussed herein, because the Court should grant 

Defendants’ Motion for Summary Judgment, the outstanding Motion should be denied as moot. 

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The undersigned recommends granting Defendants’ Motion for Summary Judgment [116]. 

Accordingly, the outstanding motions in this matter should be denied as moot. This matter should 

be dismissed in its entirety. 

II. Report 

A. Factual Background 

Through their amended Complaint, each Plaintiffs set forth the factual allegations related 

to their allegedly unconstitutional dental care. Each Plaintiff individually alleges that 

Defendants’ failure to provide adequate care was a result of deliberate indifference in violation of 

the Eighth Amendment and that the violation stems from MDOC policy and practice. Plaintiffs 

further allege that they each represent a class of similarly situated individuals who have been 

harmed by these polices. 

Plaintiff Johannes alleges that from 2008 through the time of the Complaint, he lost several 

teeth “due to periodontal disease and/or extractions and/or other reasons,” that these conditions 

were caused primarily due to substandard dental care, and that Defendants failed to provide any 

dentures or bridges (until recently) that would allow him to eat properly; he adds that the dentures 

he received recently only fill a portion of his mouth and that they fit improperly, so they cut into his 

gums when he chews. (Docket no. 37 at 13-19.) 

Plaintiff Woroniecki alleges that in December of 2013, six months after he arrived at the 

Muskegon Correctional Facility, he had “all of his remaining teeth pulled . . . pursuant to the policy 

of Defendant Heyns not to engage in restoration of teeth.” (Id. at 20.) He was placed on a 

waiting list for dentures, but before he received them, the MDOC changed its policy so that 

“prisoners are only eligible for routine dental services after 24 months from the first day of intake.” 

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(Id. at 21.) Thus, Plaintiff Woroniecki was removed from the waiting list and was told to reapply 

in June of 2014. Plaintiff went nearly 18 months without his dentures before he could ask for 

them, and when he did apply, he was told that the “list is not short.” (Id. at 21-22.) As of 

February 2, 2015, the date Plaintiffs filed their Amended Complaint, Plaintiff Woroniecki had not 

received any dentures. (Id. at 22.) 

Plaintiff Turner alleges that his dentures disappeared during a shakedown of his cell on 

January 1, 2014. He asked to be placed on the waiting list for dentures, but when prison staff 

determined that “there [was] no evidence that any [MDOC] staff were responsible for the loss of 

the . . . dentures,” the prison enforced MDOC policy and told him that he would have to wait five 

years from the time he originally received them (until December of 2016) to have his dentures 

replaced. He alleges that he has endured prolonged pain while waiting for the dentures. (Id. at 

23-24.) 

Plaintiff Stephenson alleges that in June of 2012, his upper dental plate split in half. He 

was placed on a waiting list for dentures, and in March of 2013, he was “issued a detail for a soft 

diet because he could not chew food with his broken upper denture.” (Id. at 25-26.) In July of 

2013, the prison dentist took impressions for a replacement dental plate, but seven months later, in 

February of 2014, Plaintiff was told that there was an “inadvertent delay in the processing of [his] 

dentures . . . [, so his] case ha[d] . . . been assigned priority status.” (Id. at 26.) Plaintiff received 

his dentures in June of 2014—two years after his dental plate split. (Id. at 27.) 

Plaintiff Rogers alleges that in November of 2012, he told a prison nurse that he was “in 

severe, prolonged pain within his mouth, and [that he] had problems with his stomach and with 

digesting food because he could not masticate his food properly due to having only eight teeth in 

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his mouth.” (Id. at 27.) He claims that the nurse placed him “near the top of the waiting list” and 

told him to expect to be called out the next month. (Id.) In August of 2013, Plaintiff Rogers 

learned that he was not eligible for another partial plate for his mouth because he had received one 

in December of 2008 and because he had less than 12 months left before his earliest possible 

release date. (Id. at 28.) As of April 2014, Plaintiff had not been evaluated, so he filed a 

grievance. (See id. at 28-29.) In response to Step II of his grievance, Plaintiff Rogers was told 

that he would be provided with treatment because he had no clear parole date but that he would not 

be given any priority on the treatment list. (See id. at 29.) As of February 2015, Plaintiff still had 

not received his dentures. (Id. at 30.) 

B. Procedural History 

Plaintiff Johannes filed his Complaint on April 28, 2014. (Docket no. 1.) The Court held 

a scheduling conference on July 10, 2014, and on July 14, 2014, the Court entered a Scheduling 

Order setting a discovery cutoff date of September 18, 2015 and a dispositive motion cutoff date of 

November 6, 2015. (Docket no. 18.) The Parties started discovery, and Plaintiffs filed their 

Amended Complaint on February 2, 2015. (Docket no. 37.) The next day, Plaintiffs filed their 

Motion to Certify Class. (Docket no. 38.) 

On August 6, 2015, while Plaintiffs’ Motion was outstanding, Defendants filed a Motion to 

Dismiss, arguing that Plaintiff Max Rogers’ claims were moot because he had been paroled on 

July 8, 2014. (Docket no. 77.) On August 11, 2015, five days after Defendants filed their 

Motion to Dismiss, the undersigned recommended that the Court grant Plaintiffs’ Motion to 

Certify Class. (Docket no. 83.) Judge Laurie J. Michelson rejected the recommendation on 

Defendants’ objections, denying Plaintiffs’ Motion without prejudice because Plaintiffs had failed 

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to meet their burden of “showing that the complaint is plausible on its face.” (Docket no. 105 at 

16.) Judge Michelson found that additional discovery may be necessary to determine whether 

class certification is proper but also noted two substantive concerns raised by Defendants: (1) 

whether Plaintiffs had exhausted their administrative remedies under the Prison Litigation Reform 

Act (PLRA); and (2) whether Plaintiffs Evans and Rogers would be appropriate class 

representatives if their claims were moot. (Id. at 16 n.2, 17-18.) Thus, Judge Michelson found 

that it would be prudent for the Court to address these potentially dispositive issues before granting 

class certification. 

On November 6, 2015, pursuant to Defendants’ Motion to Dismiss (docket no. 77), the 

Court addressed the latter of the two issues referred to by Judge Michelson through a Report and 

Recommendation. (Docket no. 117.) The undersigned recommended dismissing the claims 

filed by Plaintiff Rogers as moot. (Id. at 14.) The Court has not yet determined whether to adopt 

or reject the recommendation, but on the same day it was entered, Defendants filed their instant 

Motion for Summary Judgment, which, in part, addresses the question of exhaustion under the 

PLRA. (Docket no. 116.) 

C. Governing Law 

“The 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 moving party may meet that burden “by ‘showing’–that is, pointing out to the 

district court–that there is an absence of evidence to support the nonmoving party’s case.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56 expressly provides that: 

A party asserting that a fact cannot be or is genuinely disputed must support the 

assertion by: 

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(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion 

only), admissions, interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence 

of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact. 

Fed. R. Civ. P. 56(c)(1). The Rule also provides the consequences of failing to properly support 

or address a fact: 

If a party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may: 

 (1) give an opportunity to properly support or address the fact; 

 (2) consider the fact undisputed for purposes of the motion; 

(3) grant summary judgment if the motion and supporting materials – 

including the facts considered undisputed – show that the movant is entitled 

to it; or 

 (4) issue any other appropriate order. 

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may consider other 

materials in the record.” Fed. R. Civ. P. 56(c)(3). 

When the moving party has met its burden under rule 56, “its opponent must do more than 

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric 

Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court must 

determine whether the record as a whole presents a genuine issue of material fact, id. at 587, 

drawing “all justifiable inferences in the light most favorable to the non-moving party,” Hager v. 

Pike County Bd. Of Education, 286 F.3d 366, 370 (6th Cir. 2002). 

D. Analysis 

Through their Motion, Defendants assert that Plaintiffs’ claims fail because (1) Plaintiffs 

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have each failed to exhaust their administrative remedies under the PLRA; (2) Plaintiff Johannes’s 

claims based on events occurring before April 28, 2011, are barred by the applicable statute of 

limitations; (3) Plaintiffs have each failed to show that Defendants were deliberately indifferent to 

their serious dental or medical needs; (4) Defendant Sanders had no personal involvement in any 

of Plaintiff Johannes’s care after March 13, 2013; and (5) the dental policy at issue did not apply to 

Plaintiff Johannes because it went into effect after the alleged treatment (or lack thereof) occurred. 

(See docket no. 116 at 14.) Plaintiffs respond by asserting that (1) they did properly exhaust their 

claims under the PLRA; (2) the applicable statute of limitations does not apply because of the 

continuing-violation doctrine; (3) Plaintiffs have established (at minimum a question of fact) that 

their constitutional rights have been violated. (See docket no. 123.) 

In a matter such as this, it is typically more efficient to address threshold issues like 

exhaustion, the statute of limitations, and personal involvement of the defendants before 

addressing any substantive issues. Here, though, it is necessary to put Plaintiffs’ claims into 

context through a brief discussion the substantive issues at hand, because without doing so, it is 

nearly impossible to consider these threshold issues in the proper light. 

As noted, Plaintiffs claim that Defendants violated the Eighth Amendment by showing 

deliberate indifference to their serious medical (i.e. dental) needs “[a]s evidenced by systemic 

deficiencies in dental care policies and practices in Michigan prisons that have produced 

longstanding instances of inadequate care.” (Docket no. 37 at 31.) Plaintiffs bring their claim 

against Defendant Sanders in his role as the “general dentist in charge of the dental care for the 

plaintiff representative”4

 and against Defendant Washington in her role as Director of the MDOC. 

 

4

 It is critical to note that Defendant Sanders only had contact with Plaintiff Johannes. 

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(Id. at 2-3.) Plaintiffs allege that Defendant Washington “has reduced the dental staffing at all 

prisons, which has decreased the number of dentists that are assigned to provide dental care at each 

facility.” (Id. at 2.) Thus, they contend, 

Most prisons are providing only emergency dental care and do not have the time or 

resources to provide routine care now to prevent present dental issues from turning 

into emergencies and subjecting Plaintiffs and the class members to severe and 

prolonged dental pain and loss of teeth that can never be effectively replaced. This 

decrease in staffing has resulted in increased wait lists for dental care, such as: 

dentures, replacement of dentures that have broken, filling of cavities, restoration 

of teeth, and cleaning of teeth. 

(Id. at 2-3.) Although not set forth plainly in their Amended Complaint, Plaintiffs’ claim centers 

around three key allegations: 

 The MDOC policy requiring new prisoners to wait 24 months before receiving dental 

care is unconstitutional because the lack of routine care regularly causes non-emergent 

dental issues to become more serious, which in turn results in the extraction of teeth; 

that is, the 24-month waiting period for new prisoners amounts to a de-facto 

tooth-extraction policy, which causes unnecessary pain and results in an inability to 

properly chew food; 

 The MDOC’s characterization of dentures as part of “routine” dental care is 

unconstitutional where teeth are pulled during intake because prisoners are then subject 

to a two-year waiting period before they can request dentures, leading to unnecessary 

pain and an inability to chew food; and 

 The MDOC’s blanket limitation on dentures to one set every five years and the general 

length of time that it takes to receive dentures after impressions are made are both 

unconstitutional. 

(See docket no. 123 at 49-50; 52-56; 57-59.) 

 It is axiomatic that the failure of a prison system to provide adequate dental care can be a 

violation of the Eighth Amendment. See McCarthy v. Place, 313 Fed.Appx. 810, 814 (6th Cir. 

2008) (noting that dental needs fall into the category “of serious medical needs” because “[d]ental 

 

The other Plaintiffs were treated by other dentists in the MDOC system. 

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care is one of the most important needs of inmates”). And as Plaintiff notes, courts have found it 

improper to grant summary judgment in cases where the prisoners suffered from painful, decayed 

and cracked teeth; tooth deterioration and an inability to eat properly; and bleeding gums, broken 

teeth, and an inability to eat properly. (See docket no. 123 at 43-44 (citing cases from the Second, 

Seventh, Eighth, and Ninth Circuits).) Moreover, courts have held that prisoners have stated a 

claim for deliberate indifference where they have endured pain and an inability to eat while 

waiting for dentures. (See id. at 44-45 (citing cases from the Seventh, Ninth, and Eleventh 

Circuits).) 

 Plaintiffs here challenge the portion of MDOC Policy Directive 04.06.150 that states, 

“Prisoners are eligible for routine dental services after 24 months from the first day of intake.” 

(Docket no. 123 at 53); PD 04.06.150 ¶L. The policy directive defines three types of dental care: 

A. Routine Dental Services - Diagnostic, endodontic, restorative, periodontal, 

prosthetic, and non-urgent oral surgical procedures. 

B. Urgent Dental Services – Dental services determined by a Dentist to be 

medically necessary and generally applies to prisoners with facial swelling, 

oral facial trauma, profuse bleeding, or pain that cannot be controlled by 

mild pain medication (e.g., Tylenol). These conditions are not likely to 

cause death or irreparable harm, if not treated immediately. 

C. Emergency (Emergent) Dental Services - Dental services for those 

conditions for which delay in treatment may result in death or permanent 

impairment. 

PD 04.06.150. Additionally, the policy directive requires that every prisoner be subject to a 

dental intake examination: 

I. The dental intake examination shall be performed by a fully licensed 

Dentist. All findings shall be fully documented in the electronic medical 

record or, if not available, on authorized dental health forms. The dental 

examination shall include: 

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1. Reviewing the prisoner’s dental health history and documenting 

current level of care needed (i.e., urgent/emergent or routine). 

2. Taking appropriate radiographs for diagnostic review. 

3. Inspecting for obvious tooth decay, missing teeth, prostheses, teeth 

in obvious need of extraction, dental abnormalities, and signs of 

dental disease. Instrumentation shall be used when appropriate. 

4. Providing information regarding the availability of dental services 

and instructions on proper oral hygiene. 

Id. 

Plaintiffs argue that—as applied—this policy regularly results in one of the two the 

following processes: either (1)(a) prisoners are screened at intake and found to require routine 

care, such as restorative or non-urgent surgical procedures; (b) this routine care is denied for two 

years at which time the prisoners’ oral condition has deteriorated to a point where tooth-extraction 

is necessary; and (c) the prisoners’ teeth are extracted; or (2)(a) prisoners are screened at intake 

and found to require urgent care, such as tooth extraction; (b) the prisoners’ teeth are extracted; and 

(c) the prisoners are told they must wait two years before requesting dentures because dentures are 

considered routine. Plaintiffs argue that these processes, resulting from the application of PD 

04.06.150, cause needless pain, bleeding, loss of good teeth, loss of weight, and chewing 

difficulties. (See, generally, docket no. 123 at 52-59.) Defendants argue that under PD 

04.06.150, the actual scheduling of dental services and the treatment provided are still left to the 

dental staff and dental professionals at each prison. (Docket no. 116 at 33-34 (citing PD 

04.06.150 ¶¶ F, P, G)); see also, id. ¶O. Moreover, Defendants assert the Plaintiffs in this matter 

did not suffer any harm from the application of the policy. (Id. at 35-41.) 

 It is in this context that the Court must consider whether the individual Plaintiffs in this 

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matter have met the procedural and statutory thresholds necessary to bring their claims against the 

named Defendants. Notably, the undersigned will address the Plaintiffs’ claims individually as 

class certification has not been granted in this matter. 

1. Plaintiffs’ Claims Against Defendant Sanders 

a. Plaintiffs Woroniecki, Turner, Stephenson, and Rogers 

To state a plausible claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that each 

defendant was personally involved in the alleged constitutional violation. Copeland v. Machulis, 

57 F.3d 476, 481 (6th Cir. 1995). It is undisputed that Plaintiffs’ claims against Defendant 

Sanders derive from his role as the general dentist in charge of Plaintiff Johannes’s care while he 

was incarcerated at the Gus Harrison Correctional Facility (ARF). It is likewise undisputed that 

Plaintiffs Woroniecki, Turner, Stephenson, and Rogers had no contact with Defendant Sanders 

and that Defendant Sanders had no oversight regarding their dental care. Thus, there is no basis 

for their claims; Defendants’ Motion for Summary Judgment should be granted in this regard, and 

Plaintiffs’ Woroniecki, Turner, Stephenson, and Rogers’ claims against Defendant Sanders should 

be dismissed. 

b. Plaintiff Johannes 

Plaintiff Johannes was incarcerated at ARF from 2008 through March 13, 2013, at which 

time he was transferred to West Shoreline Correctional Facility (MTF). In Plaintiffs’ Complaint, 

they set forth the factual allegations related to Plaintiff Johannes’s claim, all of which occurred 

between May 6, 2009, and June 17, 2013. (See docket no. 37 at 13-19.) Defendant Sanders was 

the dentist in charge of Plaintiff Johannes’s care while he was at ARF, but once he was transferred 

on March 13, 2013, his care was provided by Dr. Kevin Murphy, the dentist in charge at MTF. 

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(See docket no. 116 at 42.) 

Although Plaintiffs set forth a detailed factual account of the care provided by Defendant 

Sanders (see docket no. 123 at 8-15), they make clear through their Amended Complaint and their 

Response to Defendants’ Motion that their claims in this matter arise from the allegedly 

unconstitutional application of PD 04.06.150: 

Further, Defendant Sanders pursued this course of treatment based on an MDOC 

Policy Directive that Plaintiffs, in this suit, allege violates the Eighth Amendment 

as Applied. . . . This policy, since its adoption in 2013, has prohibited MDOC 

dentists from providing dental treatment without regard to how basic preventative 

work would, in cases like Plaintiff Johannes’s, save the patient numerous teeth and 

prevent significant pain. As a result, countless inmates have been subject to cruel 

and unusual punishment by having teeth extracted, pain ignored, and dentures 

denied for extended periods of time based on the MDOC PD 04.06.150. 

(Docket no. 123 at 39-40; see also id. at 53 (“The primary Policy Directive that Plaintiffs are 

challenging is the manner Defendants have applied PD 04.06.150.”).) Plaintiffs further note that 

“[f]or the entire time MDOC’s Policy Directive has been in effect and applied, it has been 

continually used to deny dental treatment to Plaintiff Johannes” and that “MDOC Policy Directive 

04.06.150 remains in effect, and as long as Plaintiff Johannes’s treatment was dictated by that 

policy, his constitutional rights were violated.” (Id. at 40, 41.) 

 Even assuming, arguendo, that these statements are correct, it is of critical import that PD 

04.06.150 did not take effect until September 30, 2013, more than six months after Plaintiff 

transferred away from ARF and away from Defendant Sanders’s care. Thus, the care that 

Defendant Sanders provided to Plaintiff Johannes could not possibly have been provided under PD 

04.06.150. And because Plaintiffs’ claims challenge the application of this Policy Directive, 

Plaintiff Johannes’s claims against Defendant Sanders should be dismissed. 

2. Plaintiffs’ Claims Against Defendant Washington 

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a. Supervisory Liability 

Defendants argue that Plaintiffs have also failed to show that Defendant Washington (or 

more specifically, former-Defendant Heyns) was personally involved in any of the Plaintiffs’ 

dental care. (Docket no. 116 at 41.) It is undisputed that Director Heyns had no direct 

involvement in Plaintiffs’ dental care. But Plaintiffs do not argue that Director Heyns was 

personally involved in their dental care; instead, they argue that, as Director of the MDOC, Henys 

(and now Defendant Washington) promulgated PD 04.06.160 and failed to hire sufficient dental 

staff, which resulted in their alleged injuries. Thus, Defendant Washington is sued in a 

supervisory role. 

As a matter of law, it is a well-established principle that § 1983 liability cannot be based on 

a mere failure to act or on a theory of respondeat superior. Salehpour v. Univ. of Tenn., 159 F.3d 

199, 206-07 (6th Cir. 1998). Rather, a supervisor must have “‘either encouraged the specific 

incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff 

must allege that the official at least implicitly authorized, approved, or knowingly acquiesced in 

the unconstitutional conduct of the offending officers.’” Shehee v. Luttrell, 199 F.3d 295, 300 

(6th Cir. 1999) (quoting Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982)). 

Therefore, to the extent Plaintiffs can support a showing that Director Heyns implemented PD 

04.06.150 and failed to hire sufficient staff to provide proper dental care under the policy, Director 

Heyns (and now Defendant Washington through Fed. R. Civ. P. 25(d)) is a proper defendant in this 

matter.5 Nevertheless, the Court need not determine whether Plaintiffs can do so because, as 

 

5 Defendants to not directly address this issue, instead merely stating that Plaintiffs’ 

“complaints against Heyns stem from Plaintiffs misconstruing the meaning of the Policy and 

Procedures themselves, which on their face expressly prescribe a constitutionally adequate level of 

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discussed further below, they have failed to properly exhaust their administrative remedies under 

the PLRA with regard to Director Heyns.6

b. The PLRA Exhaustion Requirement 

The PLRA requires that a prisoner exhaust all administrative remedies before filing a 

Section 1983 action. Specifically, the statute provides, “no action shall be brought with respect 

to prison conditions under section 1983 . . . , 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). But “while the preferred practice is for inmates to complete 

the grievance process prior to the filing of an action and to attach to their complaint documentation 

of that fact, ‘because the exhaustion requirement is not jurisdictional, district courts have some 

discretion in determining compliance with the statute.’” Curry v. Scott, 249 F.3d 493, 502 (6th 

Cir. 2001)(citations omitted). Notably, the Sixth Circuit “requires an inmate to make ‘affirmative 

efforts to comply with the administrative procedures,’ and analyzes whether those ‘efforts to 

exhaust were sufficient under the circumstances.’” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 

2011) (citing Napier v. Laurel Cnty., Ky., 636 F.3d 218, 224 (6th Cir. 2011)(internal quotation 

marks and citation omitted)). 

The MDOC Policy Directive regarding prisoner grievances requires a prisoner to file a 

Step I grievance within five days of attempting to resolve the grievable issue with prison staff. 

 

dental care.” (Docket no. 116 at 41.) 

6

 It is critical for purposes of further discussion that Plaintiffs do not challenge PD 

04.06.150 on its face; instead, as noted, Plaintiffs challenge the Policy Directive as it was applied 

to them. Notably, PD 03.02.130 provides that “[a] grievant may not grieve the content of a policy 

or procedure,” but it specifically carves out an exception where a prisoner challenges that policy or 

procedure “as it was specifically applied to the grievant.” PD 03.02.130 ¶F.1. Thus, Plaintiffs in 

this matter were required to exhaust the MDOC grievance procedure before filing their instant 

claims.

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MDOC Policy Directive 03.02.130 ¶V. The prisoner must then proceed through Steps II and III 

of the grievance process and receive a Step III response to complete the process. See Muttscheler 

v. Martin, No. 12-1221, 2013 WL 3730095, at *3-5 (W.D. Mich. July 15, 2013). The 

requirements for a Step I grievance are set forth, in relevant part, as follows: 

The issues should be stated briefly but concisely. 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. 

PD 03.02.130 ¶R. Thus, compliance with the PLRA requires that prisoners file a grievance 

against the person(s) they ultimately seek to sue. See Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 

2001). This is critical because “[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.” Reed-Bey v. Pramstaller, 603 F. 3d 322, 324 (6th Cir. 2010) (citation omitted). 

A failure to include a future defendant in a grievance does not allow that defendant the ability to 

properly address the grievance at the initial level. Defendants argue that “Plaintiffs all failed to 

exhaust against Director Heyns” because none of them included him in their grievances. (Docket 

no. 116 at 25.) Additionally, Defendants argue, all of the Plaintiffs except Plaintiff Johannes 

failed to complete the grievance process before bringing this case. (Id. at 25-28.) 

c. Plaintiffs Woroniecki and Turners’ Grievances 

Plaintiff Woroniecki was incarcerated at MCF in June 2012. He filed his Step I grievance 

related to this matter on December 30, 2013. (Docket no. 61-9 at 7.) In this grievance, Plaintiff 

Woroniecki explains that in September 2013, he was seen by the dentist at MCF and all of his 

remaining teeth were pulled. At that time, he was placed on a waiting list to receive full dentures. 

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(Id.) At the end of September 2013, the current version of PD 04.05.150 took effect, under which 

Plaintiff Woroniecki was to be denied routine dental care for the first 24 months of his 

incarceration, through June 2014. Plaintiff Woroniecki stated in his grievance that he was 

informed by dental staff that he would be removed from the current waiting list and that he could 

be added to the list again in June 2014. He argued that PD 04.06.150 was not retroactive and that 

he should not be removed from the original waiting list. He noted that he attempted to resolve the 

issue with “Health Care” at the prison. (Id.) Plaintiff Woroniecki’s grievance was denied 

through Step 3 (with final determination on May 12, 2014), wherein officials informed him that 

under PD 04.06.150, “scheduling of prisoners for dental services will normally be determined by 

the attending dentist” and that “[t]reatment priority shall be based on the clinical and professional 

judgment of the dentist.” 

 Similarly, Plaintiff Turner received a set of dentures from the MDOC on December 8, 

2011. (See docket no. 61-10 at 6.) Through his Step I grievance, he alleges that his dentures 

were lost in a shakedown of his cell in February 2014. When he attempted to get a replacement 

for his dentures, the dental staff at MCF informed him that pursuant to PD 04.06.150 ¶Y, he could 

not receive more than one set of dentures every five years; thus, he would be ineligible for dentures 

before December 2016. Plaintiff’s Turner’s Step III grievance was completed and denied on June 

12, 2014. (Id. at 4.) 

Defendants argue that Plaintiffs Woroniecki and Turner failed to name Director Heyns in 

their grievances. Plaintiffs acknowledge this deficiency, but they argue that the Sixth Circuit has 

allowed prisoner claims to proceed where a named defendant was not included in the grievance if 

the MDOC processed the grievance on the merits rather than for lack of naming the individual 

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defendants. (Docket no. 123 at 30 (citing Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 

2010); Hollins v. Curtin, No. 13-008, 2015 WL 1458944, at *11 (W.D. Mich. Mar. 30, 2015)).) 

At first glance, Plaintiffs’ argument is persuasive; the MDOC did, indeed, process 

Plaintiffs’ grievances on the merits. But the prison processed Plaintiff these grievances as an 

alleged misapplication of PD 04.06.150 by the prison medial department; that is, Reed-Bey would 

be controlling if Plaintiffs had filed a claim against the MCF dentist and Defendants had argued 

that Plaintiffs failed to properly name the dentists in their grievances. Put plainly, Plaintiffs 

Woroniecki and Turner have effectively exhausted their administrative remedies under the PLRA 

against the prison dentist or the prison health-care staff for an unconstitutional application of PD 

04.06.150. But Defendant Washington (standing in the shoes of Director Heyns) is not a proper 

party to this “as-applied” action because (1) Director Heyns had no role in Plaintiffs’ care; and (2) 

the grievances did not give Director Heyns ‘a fair opportunity’ to address the issue on the merits. 

To the contrary, because Director Heyns was not named in the grievances, it is clear from the 

grievance responses that prison officials addressed the grievances with regard to how the local 

prison staff applied PD 04.06.150. Notably, Plaintiffs’ claims would survive an exhaustion 

challenge had they filed claims against the individual dentists or health-care staff at the prison or 

had they alleged that PD 04.06.150 is unconstitutional on its face. With regard to the former, 

Plaintiffs would have properly exhausted their administrative remedies; with regard to the later, 

PD 03.02.130 ¶F.1 exempts such a claim from the grievance process. For these reasons, the Court 

should dismiss Plaintiffs Woroniecki and Turners’ claims against Defendant Washington. 

d. Plaintiff Stephenson’s Grievance and His Substantive Claims 

It is undisputed that Plaintiff Stephenson did not complete a Step 3 grievance related to his 

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claims. Instead, Plaintiff Stephenson’s grievance was resolved at Step 2. In his grievance, 

Plaintiff Stephenson notes that his upper denture split in half sometime in June 2012. Just over a 

year later, after several prison transfers and various attempts to receive a new set of dentures, 

dental impressions were made on July 17, 2013. Having still not received his dentures by January 

2, 2014, Plaintiff Stephenson filed his grievance. (See docket no. 113-2 at 2.) The grievance 

was denied at Step 1, but at Step 2, the MDOC acknowledged that there was “an inadvertent delay 

in processing of grievant’s dentures” and noted that they would be completed “as swiftly as 

possible.” (Docket no. 113-2 at 5.) Thus, had Plaintiff Stephenson’s instant claims been filed 

against his dentist or the prison health-care staff, he would have exhausted his administrative 

remedies under the PLRA because there was no further possibility of relief. See, e.g., Ross v. 

County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004); Abney v. McGinnis, 380 F.3d 663, 669 

(2d. Cir. 2004); Dixon v. Page, 291 F.3d 485, 490-91 (7th Cir. 2002). Nevertheless, Plaintiff 

Stephenson has failed to exhaust his administrative remedies against Defendant Washington for 

the same procedural reasons as discussed with regard to Plaintiffs Woroniecki and Turner. 

Moreover, Defendants contend that if Plaintiff Stephenson’s issues were resolved, his 

claims are now moot. (Docket no. 116 at 26.) The undersigned agrees. Plaintiffs seek 

prospective injunctive relief related to the application of PD 04.06.150. Plaintiff Stephenson 

ultimately received his dentures in June 2014. Thus, injunctive relief on his behalf is no longer 

appropriate. Plaintiff Stephenson’s claims against Defendant Heyns should be dismissed. 

e. Plaintiff Johannes’s Grievances and Claims 

As discussed by Plaintiffs in their Response to Defendants’ Motion, Plaintiff Johannes 

submitted numerous briefs related to his treatment as provided by Defendant Sanders. (See

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docket no. 123 at 15-18.) Ultimately, Plaintiffs argue, these grievances, and the clinical record, 

“state a clear case for his having received untimely care.” (Id. at 18.) Even assuming this 

statement is true, Plaintiff Johannes’s claims suffer from the same procedural shortcomings with 

regard to Defendant Washington as his co-Plaintiffs’ claims. That is, none of Plaintiff Johannes’s 

grievances properly name Directory Heyns. 

What differentiates Plaintiff Johannes’s claims, though, is that he did name Defendant 

Sanders in his grievances. To wit, he has exhausted his administrative remedies with regard to 

any claims against Defendant Sanders. Nevertheless, for the reasons discussed, supra, his claims 

against Defendant Sanders are improper in that they claim an unconstitutional application of a 

policy that had not yet been enacted at the time Defendant Sanders treated Plaintiff Johannes. 

Had Plaintiff Johannes filed a claim against Defendant Sanders for deliberate indifference to his 

dental needs without relying on application of PD 04.06.150, his claim may be allowed to proceed, 

assuming, of course, that it was timely. 7 Plaintiff Johannes’s claims against Defendant 

Washington also fail for the same reason. It would be inapposite to allow Plaintiff Johannes to 

proceed with a claim for an unconstitutional application of a policy directive that was not in effect 

at the time of his injury. For these reasons, Plaintiff Johannes’s claims against Defendant 

Washington should be dismissed. 

f. Plaintiff Rogers’s Claims 

Plaintiff Rogers’s grievances also suffer from the same procedural challenges as his 

co-Plaintiffs. Additionally, the undersigned has already recommended dismissing Plaintiff 

 

7

 Defendants also argue that Plaintiff Johannes’s claims against Defendant Sanders are 

barred by the applicable statute of limitations. But because the Court should dismiss Plaintiffs’ 

claims on other grounds, it need not address this issue.

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Rogers’s claims. (Docket no. 117.) Defendants address Plaintiff Rogers in their Motion to 

Dismiss, but their Motion was filed on the same day the undersigned recommended granting their 

Motion to Dismiss Plaintiff Rogers. Moreover, Plaintiffs have neither responded to Defendants’ 

Motion with regard to Plaintiff Rogers nor have they objected to the December 11, 2015 Report 

and Recommendation. Thus, for the reasons stated in the December 11, 2015 Report and 

Recommendation, the Court should dismiss Plaintiff Rogers’s claims. 

E. Conclusion 

It is clear from the record before the Court that the dental care Plaintiffs received was less 

than optimal and that each of them may, individually or as a class, have suffered damages due to 

either the decisions of the dentists that treated them, the application of the policy directive at issue, 

or the content of the policy directive on its face. Nevertheless, neither the existence of damages 

nor the need for a change in the dental care these prisoners receive absolves Plaintiffs from 

following the appropriate procedural guidelines discussed herein. Therefore, the Court should 

grant Defendants’ Motion for Summary Judgment [116], the outstanding motions in this matter 

should be denied as moot, and this matter should be dismissed in its entirety. 

III. Notice to Parties Regarding Objections 

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act 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 

(1985); Howard v. Sec=y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to 

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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, 1373 (6th Cir. 1987). 

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

Magistrate Judge. 

Any objections must be labeled as AObjection #1,@ AObjection #2,@ etc. Any objection 

must recite precisely the provision of this Report and Recommendation to which it pertains. 

Not later than fourteen days after service of an objection, the opposing party must file a concise 

response proportionate to the objections in length and complexity. The response must 

specifically address each issue raised in the objections, in the same order and labeled as 

AResponse to Objection #1,@ AResponse to Objection #2,@ etc. 

Dated: January 19, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record on this date. 

Dated: January 19, 2016 s/ Lisa C. Bartlett 

Case Manager 

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