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

_________________

L ARRY L EE , Plaintiff-Appellant ,

v

.

D EAN W ILLEY , et al., Defendants ,

S UPRIYA K OPF , Personal Representative of the Estate of Kameshwari Mehra, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 14-1359

Appeal from the United St ates 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, a nd McKEAGUE, Circuit Judges.

_________________ COUNSEL

ARGUED: Mark R. Bendure, BENDURE & THOMAS , Detroit, Michigan, for Appellant. Patrick McLain, KERR, RUSSELL AND WEBER, PL C, Detroit, Michig an, for Appellee. ON BRIEF: Mark R. Bendure, BENDURE & THOMAS, De troit, 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. Plaint iff 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 safe ty in violation of the Eighth Amendment. See 42 U.S.C. § 1983; Farmer v. Brennan , 511 U.S. 825, 834 (1994). The distri ct court determined that Lee
had failed to exhaust his administrative remedies with respect to this claim as required by the Prison Litigation Reform Act (PLR A), 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 Charle s 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 trea ting 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 severa l 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 averre d 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, respective ly. Lee maintained that, despite having asked for protection, he wa s 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 re fused to give him a grievance form and called him a “faggot.” Lee alle ged that, as a result, he resorted to submitting a “substitute grievance” on pris oner 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 L ee’s release on parole. Dr. Mehra’s first motion for summary judgment for fa ilure to exhaust administrative remedies was
denied. Lee’s claims were na rrowed when defendants’ motions for summary judgment on the merits were granted in part, a nd denied in part, in October 2012. The claims that survived summary judgment were: (1) a § 1983 claim for delib erate indifference to threats to Lee’s safety against Dr. Mehra; (2) a § 1983 clai m for deliberate indifference to th reats to Lee’s safety against six MDOC defendants (Sgt. Thomas, CO Will ey, 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 deni al in October 2013, concl uding that, as a private employee under contract with the MDOC, Dr. Mehr a was not entitled to assert a qualified immunity defense. Once the stay was lifted, th e MDOC defendants—joined by the separately represented Dr. Mehra—moved for a bench trial to resolve factua l 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 distri ct court granted defendant s’ 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 di strict court heard testimony fr om eight witnesses—including Lee—and received the parties’ respective exhi bits. 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 findi ng, and Lee’s acknowledgement that no other grievance had mentione d Dr. Mehra at Step I, th e renewed motion for summary judgment filed on behalf of Dr. Mehra was gran ted on March 4, 2014. All th e 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 othe r Federal law, by a prisoner . . . until such
administrative remedies as are available ar e exhausted.” 42 U.S.C. § 1997e(a). This requirement is mandatory but not jurisdictional, and applies to al l federal claims seeking redress for prison circumstances or occurrences rega rdless 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 pr ison 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 excu sed if the administrative remedies are not available, but this court has requi red a prisoner to make “‘affirma tive efforts to comply with the administrative procedures before analyzing wh ether the facility re ndered 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 bu t does not succeed, we an alyze “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 whet her 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 th e issue agree that “judges may resolv e 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 Ci r. 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 M onte Dunes at Monterey, Ltd. , 526 U.S. 687, 709 (1999). But, “not every factual issu e 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 th an 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 ad ministration 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 exhausti on differs from subject-matter jurisdiction because exhaustion is a non- jurisdictional affirmative defense. Woodford , 548 U.S. at 101. Failure to exhaust more closely resemble s 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 fo r 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 judici al administration that “courts mu st address to determine whetherNo. 14-1359 Lee v. Willey, et al. Page 6

litigation is being conducted in th e 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 th e 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 conc lusions of law regarding exhaustion de novo , Woolsey
v. Hunt , 932 F.2d 555, 563 (6th Cir. 1991), but must accep t 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 th at, after attempting to resolve the issue with a staff member, a prisoner may pursue a wri tten 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. “Informa tion provided is to be limited to the facts involving th e 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 grievan ce may be filed by sending an appeal to the appropriate grievance coordinato r 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 re ly on the district court’s d ecision to exclude evidence of rape at trial, but that ruling was based on the separate dete rmination that the issue of rape had not been exhausted by other grievances related to anti-gay harassment. We need not decide whether that ru ling was correct because the MDOC defendants have been dismissed by stipulation an d, 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 bri nging a grievance at each step, as well as for the MDOC’s responses.
There is no dispute that the grievance process was generall y available to Lee while he was in custody at RGC. In fact, he submitted thir teen Step I grievances using the correct form in the days both before and after April 10, 2007 (s ix 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 distri ct 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 grieva nce 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 acknowl edged that he got no written response to it. Lee testified that tw o unit counselors, RUM Wozniak and ARUS Pearl,
talked with him about the letter and sexual assa ult before moving him to another cell. But, Wozniak, who since retired, testified that he did not see the grievance le tter 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 ne ver 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 Sco tt Portt, who was the Step I grievance
coordinator for Lee’s facil ity during the relevant period. Portt st ated 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 substitu te grievance letter was not among the thirteen other grievances dated April 5 through April 12 th at he received, grouped togeth er, and assigned sequentially numbered identifiers on April 13, 20 07 (several of which were reject ed). Moreover, if Portt had received anything reporting a sexua l assault, he would have escal ated the matter by sending it to an inspector. Duane Burton, the inspector for RG C, testified not only that he did not receive Lee’s substitute grievance letter, but also that such a letter woul d have prompted an investigation (which did not occur). The mail log system for in ternal affairs showed one letter from Lee about officer harassment, but none that alleged sexual assault. Nor wa s 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 “m ust 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 opport unity to judge the witne sses’ credibility.” F ED

. R. C IV

. P. 52(a)(6). “Where there are two permissi ble views of the evid ence, 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 no t clearly erroneous for th e district court to find by a preponderance of the evidence that the substitu te 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 doe s not argue that there were material questions of fact that precluded summary judgment on the issue of exhaustion. Rath er, the question is whether, even if the substitute letter is disregarded, Le e’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 calle d him a “faggot” (“572”). Dr. Mehra argued that these grievances could not suffice to exhaust th e 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 muc h, but argues that this defect was not an impediment to exhaustion because the Step II ap peals for those grievances included the marginal notation, “I complained to Dr. Mira [sic] as well.”
To be sure, this court has refused to en force 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 Th omas 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 ha ve 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 faile d to exhaust his administ rative remedies with respect to the claim against Dr. Mehra.

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