1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0127p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

LARRY LEE, 

Plaintiff-Appellant, 

v. 

DEAN WILLEY, et al., 

Defendants, 

SUPRIYA KOPF, Personal Representative of the 

Estate of Kameshwari Mehra, 

Defendant-Appellee. 

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No. 14-1359 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

No. 2:10-cv-12625—Nancy G. Edmunds, District Judge. 

Argued: April 23, 2015 

Decided and Filed: June 18, 2015 

Before: GUY, MOORE, and McKEAGUE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Mark R. Bendure, BENDURE & THOMAS, Detroit, Michigan, for Appellant. 

Patrick McLain, KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan, for Appellee. ON 

BRIEF: Mark R. Bendure, BENDURE & THOMAS, Detroit, Michigan, for Appellant. Patrick 

McLain, KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan, for Appellee. 

>
No. 14-1359 Lee v. Willey, et al. Page 2 

_________________ 

OPINION

_________________ 

 RALPH B. GUY, JR., Circuit Judge. Plaintiff Larry Lee, formerly a state prisoner, 

appeals from the entry of summary judgment in favor of the now-deceased Dr. Kameshwari 

Mehra, a part-time prison psychiatrist, with respect to Lee’s § 1983 claim for deliberate 

indifference to an inmate’s health or safety in violation of the Eighth Amendment. See 42 U.S.C. 

§ 1983; Farmer v. Brennan, 511 U.S. 825, 834 (1994). The district court determined that Lee 

had failed to exhaust his administrative remedies with respect to this claim as required by the 

Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). For the reasons that follow, we 

affirm the dismissal of this claim.1

I.

Lee, a homosexual man described as having effeminate mannerisms, was transferred 

from the Washtenaw County Jail to the custody of the Michigan Department of Corrections 

(MDOC) following his conviction on two counts of criminal sexual conduct involving adult male 

victims. Lee’s complaint asserted a variety of claims against a number of prison officials arising 

out of Lee’s confinement at the MDOC’s Charles Egeler Reception and Guidance Center (RGC) 

for intake and processing from March 23, 2007, until his transfer to another facility on May 9, 

2007. This appeal is confined to the claim that Dr. Mehra, a treating psychiatrist under contract 

with the MDOC, was deliberately indifferent to Lee’s need for protection from prisoner-onprisoner sexual assault. 

The complaint alleged, in part, that several correctional officers (COs) had harassed Lee 

about being homosexual and/or made comments in front of other inmates encouraging sexual 

advances. Lee alleged that three COs failed to act when Lee requested protection from inmates 

who were pursuing him for sex. Further, Lee averred that he complained, to no avail, about staff 

harassment and/or being pursued for sex to mental health professionals Paul Schneeman, Wills 

 1

We continue to refer to defendant as Dr. Mehra for ease of reference, although Supriya Kopf, the personal 

representative for the estate of Kameshwari Mehra, M.D., has been substituted as the appellee in this matter. 
No. 14-1359 Lee v. Willey, et al. Page 3 

Dixon, and Dr. Mehra on March 26, April 2, and April 6, 2007, respectively. Lee maintained 

that, despite having asked for protection, he was raped in his cell by two unidentified inmates 

when he decided not to go to dinner on April 9, 2007. 

Lee alleged that he went to the officer’s desk after being assaulted, asked to speak with a 

mental health professional, and argued with an unknown CO who refused to give him a 

grievance form. Then, on the way to lunch the next day, CO Zischke refused to give him a 

grievance form and called him a “faggot.” Lee alleged that, as a result, he resorted to submitting 

a “substitute grievance” on prisoner stationery on April 10, 2007. Defendants had no record of 

receiving this three-page substitute grievance letter—the only grievance from Lee that mentioned 

having been raped—and disputed whether it had been submitted as Lee claimed. Lee alleged 

that the COs continued to harass him about his sexual orientation until he was transferred to 

another facility on May 9, 2007. 

This action was filed in July 2010, a few months before Lee’s release on parole. Dr. 

Mehra’s first motion for summary judgment for failure to exhaust administrative remedies was 

denied. Lee’s claims were narrowed when defendants’ motions for summary judgment on the 

merits were granted in part, and denied in part, in October 2012. The claims that survived 

summary judgment were: (1) a § 1983 claim for deliberate indifference to threats to Lee’s safety 

against Dr. Mehra; (2) a § 1983 claim for deliberate indifference to threats to Lee’s safety against 

six MDOC defendants (Sgt. Thomas, CO Willey, CO Bagley, CO Owen, CO Zischke, and 

psychologist Dixon); and (3) a state-law claim for intentional infliction of emotional distress 

against two of the MDOC defendants (Thomas and Willey). 

The proceedings were stayed during Dr. Mehra’s interlocutory appeal from the denial of 

qualified immunity. This court affirmed the denial in October 2013, concluding that, as a private 

employee under contract with the MDOC, Dr. Mehra was not entitled to assert a qualified 

immunity defense. Once the stay was lifted, the MDOC defendants—joined by the separately 

represented Dr. Mehra—moved for a bench trial to resolve factual disputes regarding exhaustion 

of the claims purportedly raised in the substitute grievance. Concluding that Lee did not have a 

right to a jury trial on these issues, the district court granted defendants’ motion and conducted a 

full-day bench trial on February 20, 2014. 
No. 14-1359 Lee v. Willey, et al. Page 4 

During the bench trial, the district court heard testimony from eight witnesses—including 

Lee—and received the parties’ respective exhibits. Weighing the evidence and determining 

credibility, the district court made the critical factual finding that Lee had not submitted the 

substitute grievance letter on April 10, 2007. With that finding, and Lee’s acknowledgement that 

no other grievance had mentioned Dr. Mehra at Step I, the renewed motion for summary 

judgment filed on behalf of Dr. Mehra was granted on March 4, 2014. All the claims against the 

remaining MDOC defendants were dismissed by stipulation the same day, and this appeal 

followed.2

II.

The PLRA provides that “[n]o action shall be brought with respect to prison conditions 

under section 1983 of this title, or any other Federal law, by a prisoner . . . until such 

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This 

requirement is mandatory but not jurisdictional, and applies to all federal claims seeking redress 

for prison circumstances or occurrences regardless of the type of relief being sought. See Porter 

v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731 (2001). The PLRA has 

been interpreted to require “proper exhaustion,” meaning that a prisoner must “‘complete the 

administrative review process in accordance with the applicable procedural rules,’. . . [as] 

defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 

199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 82, 88 (2006)). Failure to exhaust 

administrative remedies is an affirmative defense, which the defendant has the burden to plead 

and prove by a preponderance of the evidence. Id. at 216. 

A prisoner’s lack of compliance may be excused if the administrative remedies are not 

available, but this court has required a prisoner to make “‘affirmative efforts to comply with the 

administrative procedures before analyzing whether the facility rendered these remedies 

unavailable.’” Napier v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir. 2011) (citation omitted); see 

also Brock v. Kenton Cnty., 93 F. App’x 793, 798 (6th Cir. 2004) (citing cases). When a 

prisoner makes affirmative efforts to comply but does not succeed, we analyze “whether those 

 2

The order granting summary judgment in favor of Dr. Mehra was entered nunc pro tunc, with the 

concurrence of counsel for Lee, as Dr. Mehra died shortly before the bench trial and his estate had not yet been 

opened. 
No. 14-1359 Lee v. Willey, et al. Page 5 

‘efforts to exhaust were sufficient under the circumstances.’” Risher v. Lappin, 639 F.3d 236, 

240 (6th Cir. 2011) (quoting Napier, 636 F.3d at 224). 

A. Right to Jury Trial

This court has not previously addressed whether material questions of fact concerning 

exhaustion under the PLRA should be decided by a judge or a jury. However, all six of the 

circuits that have considered the issue agree that “judges may resolve factual disputes relevant to 

the exhaustion issue without the participation of a jury.” Small v. Camden Cnty., 728 F.3d 265, 

271 (3d Cir. 2013); see also Messa v. Goord, 652 F.3d 305, 308-09 (2d Cir. 2011) (per curiam); 

Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Pavey v. Conley, 544 F.3d 739, 742 (7th 

Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373-77 (11th Cir. 2008); Wyatt v. Terhune, 315 F.3d 

1108, 1119-20 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 

1166, 1170-71 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 403 (2014). We review this 

question of law de novo. 

The Seventh Amendment guarantees a right to a jury trial on the merits of an action 

seeking legal relief under § 1983. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 

526 U.S. 687, 709 (1999). But, “not every factual issue that arises in the course of a litigation is 

triable to a jury as a matter of right, even if it is a suit at law (rather than in equity) within the 

meaning of the Seventh Amendment.” Pavey, 544 F.3d at 741; see also Small, 728 F.3d at 269; 

Messa, 652 F.3d at 309; Dillon, 596 F.3d at 271. For example, judges may resolve disputed facts 

in deciding threshold issues of judicial administration such as subject-matter jurisdiction, 

personal jurisdiction, venue, and abstention in favor of another court or agency. Accord Albino, 

747 F.3d at 1170; Small, 728 F.3d at 269-70; Dillon, 596 F.3d at 271-72. 

It is true, as Lee observes, that the issue of exhaustion differs from subject-matter 

jurisdiction because exhaustion is a non-jurisdictional affirmative defense. Woodford, 548 U.S. 

at 101. Failure to exhaust more closely resembles the waivable defenses of lack of personal 

jurisdiction and improper venue, although exhaustion under the PLRA differs in that it is a 

prerequisite or precondition for bringing suit in any court. See Small, 728 F.3d at 269. These 

differences, however, do not alter our conclusion that exhaustion under the PLRA is analogous to 

other threshold issues of judicial administration that “courts must address to determine whether 
No. 14-1359 Lee v. Willey, et al. Page 6 

litigation is being conducted in the right forum at the right time.” Dillon, 596 F.3d at 272; see 

also Small, 728 F.3d at 269-70. “Matters of judicial administration often require judges to 

decide factual disputes that are not bound up with the merits of the underlying dispute.” Messa, 

652 F.3d at 309; see also Pavey, 544 F.3d at 741 (“Juries decide cases, not issues of judicial 

traffic control.”). We affirm the district court’s conclusion that the disputed issues of fact 

regarding exhaustion under the PLRA presented a matter of judicial administration that could be 

decided in a bench trial.3

B. Bench Trial

We review the district court’s conclusions of law regarding exhaustion de novo, Woolsey 

v. Hunt, 932 F.2d 555, 563 (6th Cir. 1991), but must accept the district court’s factual findings 

unless they are clearly erroneous, Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). 

See also Pavey v. Conley (Conley II), 663 F.3d 899, 904 (7th Cir. 2011); Dillon, 596 F.3d at 273. 

The MDOC’s grievance procedures provided that, after attempting to resolve the issue 

with a staff member, a prisoner may pursue a written grievance through the three-step grievance 

process. See MDOC Policy Directive 03.02.130 (eff. 3/5/07). A Step I grievance may be filed 

by completing the specified form and submitting it to the Step I grievance coordinator 

(Prisoner/Parolee Grievances (CSJ-247A)). Id. ¶¶ P and V. “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.” Id. at ¶ R. If the grievant is dissatisfied with the response at Step I, or does not 

receive a timely response, a Step II grievance may be filed by sending an appeal to the 

appropriate grievance coordinator using the specified appeal form (Prisoner/Parolee Grievance 

Appeal (CSJ-247B)). Id. at ¶ BB. Likewise, if the grievant is dissatisfied with the response at 

Step II, or does not receive a timely response, a Step III grievance may be submitted using the 

 3

Despite Lee’s assertion that the district court erred by deciding the “core liability issue of whether Lee was 

raped,” the record reflects that the factual disputes concerning exhaustion were not intertwined with the merits of 

Lee’s underlying Eighth Amendment claim. Lee seems to rely on the district court’s decision to exclude evidence of 

rape at trial, but that ruling was based on the separate determination that the issue of rape had not been exhausted by 

other grievances related to anti-gay harassment. We need not decide whether that ruling was correct because the 

MDOC defendants have been dismissed by stipulation and, as discussed below, those other grievances did not 

exhaust claims against Dr. Mehra.
No. 14-1359 Lee v. Willey, et al. Page 7 

same appeal form. Id. at ¶ FF. Time limits apply for bringing a grievance at each step, as well 

as for the MDOC’s responses. 

There is no dispute that the grievance process was generally available to Lee while he 

was in custody at RGC. In fact, he submitted thirteen Step I grievances using the correct form in 

the days both before and after April 10, 2007 (six on April 5, one on April 9, and six on April 

12). Lee also pursued five of those grievances through Steps II and III after he was transferred to 

another facility. Lee testified, and the district court found, however, that CO Zischke had 

refused to give Lee a grievance form when he asked for one on April 10, 2007. Since it is not 

challenged on appeal, we assume, as the district court apparently did, that if Lee submitted the 

substitute grievance letter on April 10, that would be sufficient to exhaust under the 

circumstances.4

Defendants, who bore the burden of proof at trial, presented evidence to refute Lee’s 

testimony that he submitted the grievance by placing it in the “kite box” designated for 

grievances on April 10, 2007. The substitute grievance letter—which included the claim that Dr. 

Mehra (and others) failed to protect Lee from being raped on April 9—was attached to Lee’s 

complaint. It had no notation of having been received, and Lee acknowledged that he got no 

written response to it. Lee testified that two unit counselors, RUM Wozniak and ARUS Pearl, 

talked with him about the letter and sexual assault before moving him to another cell. But, 

Wozniak, who since retired, testified that he did not see the grievance letter in question and did 

not recall any conversation with Lee about being sexually assaulted. Pearl contradicted Lee as 

well, stating that she had not seen the grievance letter, that Lee never told her he had been raped, 

and that she moved Lee to another cell because he said he was being harassed about his sexual 

orientation. 

Defendants’ other witnesses included Scott Portt, who was the Step I grievance 

coordinator for Lee’s facility during the relevant period. Portt stated that the “kite box” was kept 

locked, and that any mail retrieved from it that said “grievance” on it would have come to him. 

Portt testified that he never received the grievance letter that Lee attached to his complaint. Portt 

 4

Zischke’s refusal to provide a form was grieved both in the non-conforming substitute grievance letter 

dated April 10 and in one of the Step I grievances dated April 12 (SMN-07-04-572-17C (“572”)). 
No. 14-1359 Lee v. Willey, et al. Page 8 

also explained that the substitute grievance letter was not among the thirteen other grievances 

dated April 5 through April 12 that he received, grouped together, and assigned sequentially 

numbered identifiers on April 13, 2007 (several of which were rejected). Moreover, if Portt had 

received anything reporting a sexual assault, he would have escalated the matter by sending it to 

an inspector. Duane Burton, the inspector for RGC, testified not only that he did not receive 

Lee’s substitute grievance letter, but also that such a letter would have prompted an investigation 

(which did not occur). The mail log system for internal affairs showed one letter from Lee about 

officer harassment, but none that alleged sexual assault. Nor was there a record of the letter 

being received by the Step III grievance coordinator at the time. 

In reviewing the district court’s findings for clear error, we may not substitute our 

judgment for that of the district court and “must uphold the [district] court’s account of the 

evidence if it ‘is plausible in light of the record viewed in its entirety.’” Pledger v. United States, 

236 F.3d 315, 320 (6th Cir. 2000) (quoting Anderson, 470 U.S. at 574). In doing so, we also 

“must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” FED.

R. CIV. P. 52(a)(6). “Where there are two permissible views of the evidence, the factfinder’s 

choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. On this record, 

as Lee’s counsel conceded at argument, it was not clearly erroneous for the district court to find 

by a preponderance of the evidence that the substitute grievance letter was not submitted by Lee 

on April 10, 2007. 

C. Summary Judgment

A district court’s dismissal of a prisoner’s claim for failure to exhaust administrative 

remedies is reviewed de novo. See Risher, 639 F.3d at 239. A defendant who moves for 

summary judgment on this defense bears the burden to show there was an absence of evidence to 

support the nonmoving party’s case. See Napier, 636 F.3d at 225 (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 325 (1986)). Lee does not argue that there were material questions of fact 

that precluded summary judgment on the issue of exhaustion. Rather, the question is whether, 

even if the substitute letter is disregarded, Lee’s claim for deliberate indifference against Dr. 

Mehra was exhausted by two of his other grievances (SMN-07-04-571-17C (“571”) and SMN07-04-572-17C (“572”)). 
No. 14-1359 Lee v. Willey, et al. Page 9 

The first of those, dated April 5, grieved offensive comments made by Sgt. Thomas 

during intake on March 23 (“571”). The second, dated April 12, complained that CO Zischke 

refused to give Lee a grievance form and called him a “faggot” (“572”). Dr. Mehra argued that 

these grievances could not suffice to exhaust the claim against him because neither mentioned 

him in the Step I grievance as was required by the grievance procedures. See Vandiver v. Corr. 

Med. Servs., Inc., 326 F. App’x 885, 888 (6th Cir. 2009); Sullivan v. Kasajaru, 316 F. App’x 

469, 470 (6th Cir. 2009). Lee concedes as much, but argues that this defect was not an 

impediment to exhaustion because the Step II appeals for those grievances included the marginal 

notation, “I complained to Dr. Mira [sic] as well.” 

To be sure, this court has refused to enforce procedural requirements when “prison 

officials decline to enforce their own procedural requirements and opt to consider otherwisedefaulted claims on the merits.” Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). 

This principle provides no safe harbor for Lee, however, since the denial of the Step II 

grievances made no mention of Dr. Mehra; the Step III grievances filed by Lee failed to mention 

Dr. Mehra; and the Step III denials concerned only the merits of the claims raised in the Step I 

grievances against Thomas and Zischke. See Cook v. Caruso, 531 F. App’x 554, 562-63 (6th 

Cir. 2013) (“For Reed-Bey’s holding to apply, Cook would have had to receive ‘merits-based 

responses at each step.’” Reed-Bey, 603 F.3d at 326 (emphasis added).). Thus, it was not error 

for the district court to conclude that Lee failed to exhaust his administrative remedies with 

respect to the claim against Dr. Mehra. 

III.

For the reasons stated, we AFFIRM the district court’s judgment.