UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SAMUEL R. JONES, 

 Plaintiff, 

v 

WAYNE COUNTY JAIL, et al., 

 Defendants. 

Civil Action No.: 15-12527 

Honorable George Caram Steeh 

Magistrate Judge Elizabeth A. Stafford

 / 

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT, AND TO DISMISS A CLAIM 

SUA SPONTE [ECF NO. 46] 

I. INTRODUCTION 

Plaintiff Samuel Jones has sued the Wayne County Jail (WCJ), 

Deputies Moore, Thorpe, Kozlowski, Gawenda, Galloway, Sergeants Cook, 

and Karbara,1 and a John Doe defendant alleging unnecessary uses of 

excessive force and deliberate indifference during a July 3, 2015, 

altercation in which he claims to have been assaulted by some of the 

named defendants. [ECF No. 1]. The Honorable George Caram Steeh 

entered an order sua sponte dismissing WCJ, Cook, Gawenda, and 

 

1

 Jones listed defendants by only their last names, or in some instances 

included their first initials. 
2 

Galloway before referring the matter to this Court for a report and 

recommendation on all dispositive matters pursuant to 28 U.S.C. § 

636(b)(1)(B). [ECF Nos. 6, 8]. 

Before the Court is the remaining defendants’ motion for summary 

judgment. [ECF No. 46]. The Court RECOMMENDS that defendants’ 

motion be GRANTED, and that Jones’s claims be DISMISSED WITHOUT 

PREJUDICE. In addition, the Court RECOMMENDS that Jones’s claim of 

black mold in the shower be dismissed sua sponte. 

II. ANALYSIS 

A. 

Defendants title their motion as one for summary judgment, but they 

rely on Federal Rule of Civil Procedure 12(c), which applies to motions for 

judgment on the pleadings. And even if they intended to file a motion for 

judgment on the pleadings, their motion must be treated as one for 

summary judgment under Federal Rule of Civil Procedure 56 because they 

rely on matters outside of the pleadings. See Fed. R. Civ. P. 12(d). 

“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.” Rule 56(a). The Court’s function 

at the summary judgment stage “is not to weigh the evidence and 
3 

determine the truth of the matter but to determine whether there is a 

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 

(1986). 

The party seeking summary judgment bears the initial burden of 

informing the Court of the basis for its motion, and must identify particular 

portions of the record that demonstrate the absence of a genuine dispute 

as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

If the movant satisfies this burden, the burden shifts to the non-moving 

party to go beyond the pleadings and set forth specific facts showing a 

genuine issue for trial. Id. at 324. The Court must view the factual 

evidence in the light most favorable to the non-moving party. Scott v. 

Harris, 550 U.S. 372, 380 (2007). But “[t]he failure to present any evidence 

to counter a well-supported motion for summary judgment alone is grounds 

for granting the motion.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009). 

 When feasible, the Court will decide exhaustion disputes before 

addressing the merits of the claims. See Albino v. Baca, 747 F.3d 1162, 

1170 (9th Cir. 2014). A dismissal for failure to exhaust administrative 

remedies, even when decided on summary judgment, is without prejudice. 

Boyd v. Corr. Corp. of America, 380 F.3d 989, 994 (6th Cir. 2004). 
4 

B.

 The Prison Litigation Reform Act (PLRA) requires prisoners to 

“properly” exhaust all “available” administrative remedies prior to filing a 

lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford v. 

Ngo, 548 U.S. 81, 88-90, 93 (2006). Proper exhaustion of administrative 

remedies “means using all steps that the agency holds out, and doing so 

properly (so that the agency addresses the issues on the merits).” 

Woodford, 548 U.S. at 90, 93 (citation omitted) (emphasis in original). The 

PLRA does not detail what “proper exhaustion” entails because “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). 

Jones alleges that, while being moved into a higher security level that 

required segregation, he was “attacked by several [deputies/sheriffs], 

kicked while on the ground, stomped and dragged by his wrist several feet,” 

and that defendants placed their knees into his back, cutting off his air 

supply. [ECF No. 1, PageID 3]. He also claims to have been tasered while 

lying face down in handcuffs before eventually being transported to a 

hospital for his injuries. [Id., PageID 3-4]. 

Though defendants call into doubt some of Jones’s allegations, their 
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sole argument for summary judgment is that Jones failed to exhaust his 

administrative remedies for defendants’ alleged violations before bringing 

them to court. In support, they refer to four grievances filed by Jones while 

he was incarcerated at WCJ from May 29, 2015 to March 17, 2016. [ECF 

No. 46-3]. As they note, Jones did file a grievance on the date of the 

incident, July 3, 2015, but his complaint dealt only with Moore’s placement 

of Jones into a higher security classification for arguing with another 

prisoner; there is no mention of the alleged attack from multiple defendants 

in the grievance. [Id., PageID 212]. 

In his response, Jones admits that the incident was not grieved. 

“After the assault on Mr. Jones by Wayne County Jail deputies/sheriffs, if 

plaintiff would have exhausted his administrative remedies within the 

grievance procedure afterward, it would not have changed the fact that 

plaintiff was assaulted.” [ECF No. 49, PageID 257]. He argues that 

defendants had already inflicted harm that offended the constitution, and 

that there were no administrative remedies for that harm. [Id., PageID 257-

59]. This argument may have had merit before the enactment of the PLRA, 

but it is unavailing now. 

Before the enactment of the PLRA, exhaustion was not required “if 

the prisoner sought only money damages and such relief was not available 
6 

under the relevant administrative scheme.” Woodford v. Ngo, 548 U.S. 81, 

85 (2006) (citing McCarthy v. Madigan, 503 U.S. 140, 150-151 (1992)). “In 

holding that exhaustion was not required, we reasoned in part from the 

language of § 1997e(a) that required an ‘effective’ administrative remedy 

as a precondition to exhaustion.” Booth v. Churner, 532 U.S. 731, 740 

(2001). But now, “Congress’s imposition of an obviously broader 

exhaustion requirement [post McCarthy] makes it highly implausible that it 

meant to give prisoners a strong inducement to skip the administrative 

process simply by limiting prayers for relief to money damages not offered 

through administrative grievance mechanisms.” Id., 740-41. So Jones was 

required to exhaust his administrative remedies before filing his complaint 

even if those remedies would have been ineffective in redressing the 

alleged constitutional harms. 

C. 

As a prisoner proceeding in forma pauperis, Jones is subject to the 

strictures of the Prison Litigation Reform Act (PLRA). Under the PLRA, the 

Court is required to dismiss sua sponte all or part of a complaint when the 

claims are without merit, or when the plaintiff seeks monetary damages 

from defendants who are immune from such relief. 28 U.S.C. § 

1915(e)(2)(B). Pleadings filed by pro se litigants are entitled to a more 
7 

liberal reading than would be afforded to formal pleadings drafted by 

lawyers, but such complaints still must plead a plausible claim for relief. 

Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007); Davis v. Prison Health 

Services, 679 F.3d 433, 437-38 (6th Cir. 2012). 

In his complaint, Jones alleges that he noticed black mold in the 

shower upon his release from segregation, and claims to have grieved this 

issue despite the apparent lack of such a grievance in his records. [ECF 

No. 1, PageID 4; ECF No. 46-3]. While not addressed in defendants’ 

motion, this allegation should be dismissed because it fails to state a 

plausible claim. 

A prisoner’s exposure to black mold could be a violation of the Eighth 

Amendment’s right to humane conditions of confinement. Helling v. 

McKinney, 509 U.S. 25 (1993); McIntyre v. Phillips, No. CIV.A. 1:07-CV527, 2007 WL 2986470, at *2 (W.D. Mich. Sept. 10, 2007). To state a 

claim for violation of the Eighth Amendment arising from conditions of 

confinement, a prisoner must plead facts showing (1) that “the failure to 

protect from risk of harm [was] objectively sufficiently serious,” and (2) that 

“the official acted with deliberate indifference to inmate health or safety.” 

Mingus v. Butler, 591 F.3d 474, 480 (6th Cir.2010) (internal citations and 

quotation marks omitted). Jones was required to allege the personal 
8 

involvement of each defendant who he implicates in his black mold claim. 

Palmer v. Lane, 22 F. App’x 532, 533 (6th Cir. 2001). And Jones cannot 

seek monetary damages from prison officials unless he suffered an actual 

physical injury. 42 U.S.C. § 1997e(e). 

Here, Jones fails to name a single defendant who was allegedly 

deliberatively indifferent to the presence of black mold, and he does not 

allege that he suffered an actual physical injury. He has thus failed to state 

a plausible black mold claim, and it should be dismissed sua sponte. 

III. CONCLUSION 

For the foregoing reasons, defendants’ motion [ECF No. 46] should 

be GRANTED, and Jones’s unexhausted claims should be DISMISSED

WITHOUT PREJUDICE. In addition, Jones’s black mold claim should be 

DISMISSED SUA SPONTE. 

 s/Elizabeth A. Stafford 

 ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

Dated: December 18, 2017 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

 Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 
9 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (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 objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

 Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response. 
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CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 18, 2017. 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager