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 a motion for summary judgment [Doc. #11]

filed by Defendant Angela Vettraino, a Registered Nurse employed by the MDOC. Because

the Plaintiff did not exhaust his administrative remedies before filing suit, I recommend that

the Defendant’s motion be construed as an unenumerated motion under Fed.R.Civ.P. 12(b),

that it be GRANTED, and that this Defendant be DISMISSED WITHOUT PREJUDICE.

I. FACTS

In June of 2013, Plaintiff was housed at the MacombCorrectional Facility. He alleges

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that on or about June 4, 2014, he was seen by Defendant Nurse Angela Vettraino, an MDOC

nurse, for complaints of a painful discharge from his penis. He claims that she refused to

examine him “unless [he] was having the discharge at that very moment,” and that she failed

to make any further inquiries, to conduct an examination, or to schedule an appointment with

a doctor. Complaint [Doc. #1], Statement of Facts, ¶ 1.

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

remedies, as required by 42 U.S.C. § 1997e(a). Attached to her motion as Exhibit B is a

certified copy of an 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 bythe affidavit of Logan

Nurenberg.

In response, the Plaintiff concedes that he did not file a Step III grievance before filing

his complaint. He argues that because he did not receive 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 [Doc. #15], ¶¶ 4-15.

The Plaintiff finally filed a Step III grievance appeal on July 28, 2015, two and onehalf months after he filed his complaint. Plaintiff’s Response [Doc. #15], Exhibit F.

Attached to the Defendant’s Reply Brief [Doc. #16] as Exhibit A is a copy of the

Plaintiff’s Step I and Step II grievances, which were rejected for raising multiple issues.

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While his main complaint was lack of appropriate treatment for hip pain and sciatica, he

stated in passing at Step I that “[s]everal months before experiencing pain in his hip this

grievant notified staff of a discharge he was having from his penis and was told that it was

normal for a guy his age.” He lists an incident date of October 21, 2014, but does not mention

the June 4, 2013 date that he now alleges in his complaint. The Plaintiff did not name

Defendant Vettraino at either Step I or Step II, nor did he address lack of urological treatment

at Step II.

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

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

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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).1

III. DISCUSSION

The Michigan Department ofCorrections (MDOC) provides prison inmates a detailed

procedure for bringing forward complaints, which is set forth at MDOC Policy Directive

(PD) 03.02.130.2 This grievance procedure consists of four acts an inmate must undertake

1 As I noted in Twohig v. Riley, 2013 WL 3773365, *3-4 (E.D. Mich. 2013), there

has been a divergence of views concerning whether a motion to dismiss under 42 U.S.C.

§ 1997e(a) is properly characterized as a summary judgment motion, a Rule 12(b)(6)

motion, or an unenumerated Rule 12(b) motion. In Twohig, I chose the latter as “the

more sound approach, particularly given the uncertainty as to whether a dismissal based

purely on exhaustion constitutes a “strike” under the PLRA....” See also McCormick v.

Corizon Health, Inc., 2014 WL 897371, *2 -3 (E.D.Mich. 2014)(Cleland, J.). I

recommend the same approach in this case. 

2 Defendants submitted a copy of the Policy Directive as Exhibit A to Doc. #11.

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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 (6th Cir. 2004), where the Sixth Circuit

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

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)

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(“[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.3 Paragraph T of PolicyDirective 03.02.130 provides as follows:

“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:

“To file a Step III grievance, the grievant must send a completed StepIII

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.”

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

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

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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 Policy Directive, 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 (6th Cir. 2011). The point of the exhaustion requirement is

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.,

2015 WL 136195, at *3 (E.D. Mich. 2015), citing Larkins v. Wilkinson, 1998 WL 898870

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at *2 (6th Cir. Dec.17, 1998) (unpublished).4

Apart from Plaintiff not filing a Step III grievance appeal before filing his complaint,

there is another reason that he has not properly exhausted his claim against Defendant

Vettraino: He did not name her in his Step I and Step II grievances, in violation of P.D.

03.02.130, ¶ R, which provides:

“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.” (Underscore in the original).

Plaintiff’s Step I grievance does not name Defendant Vettraino. And while it mentions

that at some point in the past, he “notified staff of a discharge he was having from his penis

and was told that it was normal for a guy his age,” the main focus of the grievance was his

hip and back issues. Significantly, the grievance lists the date of the incident complained as

October 21, 2014, more than 14 months after he saw Nurse Vettraino on June 4, 2013. 

Regardless of whether or not it was appealed through Step III, this grievance did not properly

exhaust the present claim against Defendant Vettraino.

IV. CONCLUSION

I recommend that Defendant Vettraino’s motion for summary judgment be construed

4

I have read and considered Plaintiff’s supplemental pleading [Doc. #22], in

which he cites the MDOC’s response to his post-complaint Step III appeal. He argues that

the rejection of that appeal shows that he would not have received relief even if he had

timely filed the Step III appeal. But that does not alter the PLRA’s requirement that a

claim be fully and properly exhausted before filing suit.

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as an unenumerated motion under Fed.R.Civ.P. 12(b), that it be GRANTED, and that

Defendant Vettraino 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 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). Filing of objections which 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. Secretary of HHS, 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.

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

Date: January 26, 2016

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CERTIFICATE OF SERVICE

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

January 26, 2016, electronically and/or by U.S. mail.

s/C. Ciesla 

Case Manager 

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