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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN P. HILL Sr., #223781 No. 08-13852

Plaintiff, District Judge George Caram Steeh

v. Magistrate Judge R. Steven Whalen

K. GREEN, et al,

Defendants.

 /

 REPORT AND RECOMMENDATION

 Before this Court is Defendants Michael Denise, Matthew Dunaj, Keith Green,

Connie Ignasiak and James Van Acker’s February 25, 2009 Motion for Summary Judgment

pursuant to Fed. R. Civ. P 12(b)(6) and 56(b) [Docket #17], which has been referred for a

Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth

below, I recommend the following:

1). that the motion be DENIED as to Plaintiff’s Eighth Amendment claim against 

 Defendants in their personal capacities.

2). that the motion be GRANTED as to the official capacity claims.

 

3). that the motion be GRANTED as to Plaintiff’s claim of retaliatory job

termination, based on his failure to exhaust his administrative remedies, dismissing

this claim WITHOUT PREJUDICE. 

I. PROCEDURAL AND FACTUAL BACKGROUND

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The pleadings of a pro se litigant are to be liberally construed. See Martin v.

Overton, 391 F.3d 710, 712 (6th Cir. 2004), citing Haines v. Kerner, 404 U.S. 519, 520-

21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Herron v. Harrison, 203 F.3d 410, 414 (6th Cir.

2000) (pro se pleadings are held to “an especially liberal standard”); Fed.R.Civ.P. 8(f)

(“All pleadings shall be so construed as to do substantial justice”). The Complaint,

alleging that Defendants were deliberately indifferent to his well-being, is construed as an

a claim of Eighth Amendment violations. 

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The Complaint’s allegations total six sentences. Complaint at 6. The factual

background is drawn from both the Complaint itself and Plaintiff’s February 25, 2007

Step One grievance which describes the events in greater detail. Id. at 9, Grievance

Identifier MRF 2007-03-02340-02f.

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 Plaintiff, a Michigan Department of Corrections (“MDOC”) inmate currently housed

at the Ernest C. Brooks Correctional Facility, filed a civil rights claim pursuant to 42 U.S.C.

§1983 on September 8, 2008, alleging violations of his Eighth and Fourteenth Amendment

rights while housed at the Gus Harrison Correctional Facility (“ARF”)1

. 

A. The Eight Amendment Claim

Plaintiff, proceeding pro se, alleges that at the time of his December, 2006

assignment to a food services position at ARF, he advised Defendants Green and Ignsiak,

supervising staff members, that he had not received formal training in using the kitchen’s

industrial sized food slicer (“Hobart mixer ”).2

 Complaint at pg. 9 of 16. Prior to his request

for training, Plaintiff alleges that another prisoner who had recently “sliced his fingers on the

machine” had told him that “there may have been a mis-functioning error in the on/off

switch.” Id. Plaintiff alleges that he later voiced the same concerns to Defendant VanAcker,

also a food service supervisor, who told Plaintiff “to work the machine or receive a

misconduct report.” Id. 

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Plaintiff alleges that as a result of the threat, he complied, but raised his concerns

again on February 21, 2007. Id. He alleges that VanAcker again ordered him to “either . .

. get to work or I’ll find someone to take your place.” Plaintiff claims that VanAcker then

ordered another prisoner (Lutes) to help Plaintiff operate the machine. Id. Plaintiff alleges

next that “after I finished using the mixer machine[,] prisoner Lutes turned the machine off,”

and “after wait[ing] several minutes after the motor stopped running,” Plaintiff “started to

clean the machine as ordered . . . by VanAcker.” Id. Unaware that “the blade inside was

still running,” he alleges that upon reaching inside the machine, the second and third fingers

of his right hand were severed by the machine. Id. Plaintiff was immediately transported

to a nearby hospital for emergency treatment. Id. 

Plaintiff alleges that VanAcker “was aware” that the machine “had a mechanical flaw

based upon the fact that the prisoner whom he had delegated to train [Plaintiff] had in fact

sliced his finger based upon the malfu[n]ctioning and shortage in the on/off switch on the

machine.” Id. Plaintiff alleges that prior to his own accident, Defendants Green, VanAcker,

and Denise informed him repeatedly that if he refused to operate the machine, he would

receive a major misconduct ticket, be terminated from his position, and/or “receive a negative

work report that could result in denial of parole for refusal to work.” Id. Plaintiff claims that

he “followed these orders under extreme duress.” Id. He alleges that he was never given

an instruction manual or any formal or informal training on the machine. Id. Plaintiff also

claims that “no warning sign was ever posted near or on the machine . . . describing any

dangers associated with its operations.” Id. 

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B. Retaliation

Plaintiff alleges that the day following his injury, Defendant Green promised Plaintiff

that if he signed an “agreement,” Green “would see to it” that Plaintiff would receive a “less

strenuous job.” Id. Plaintiff claims that he informed Green that he intended to file a

grievance. Id. On February 25, 2007, Plaintiff filed a grievance, alleging that Defendants

Green, Vanacker, Ignasiak, Denise, and Dunja were deliberately indifferent to his health and

safety. Id. Plaintiff alleges that when his medical leave ended in May, 2007, he was

terminated from the food services position in retaliation for filing the February 25, 2007

grievance against Defendants. Id. at 6. Plaintiff requests monetary damages for his injury

and the loss of income. Id. 

 III. STANDARD OF REVIEW

A. 42 U.S.C. §1997e(a)

 A dismissal for failure of a prisoner to exhaust administrative remedies under 42

U.S.C. §1997e(a) is a dismissal without prejudice. Freeman v. Francis, 196 F.3d 641, 645

(6th Cir. 1999). In Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 921, 166 L.Ed.2d 798

(2007), the Supreme Court suggested, in dicta, that failure to exhaust might be a basis for

dismissal under Rule 12(b)(6). However, in Pointer v. Wilkinson, 502 F.3d 369 (6th Cir.

2007), the Sixth Circuit found that a dismissal based on exhaustion may be distinct from a

dismissal for failure to state a claim upon which relief may be granted. See also Snider v.

Melindez, 199 F.3d 108, 112 (2d Cir.1999) (concluding that failure to state a claim as used

in § 1997e(c) and § 1915(g) does not include failure to exhaust administrative remedies). 

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Nevertheless, whether categorized as a 12(b)(6) motion or otherwise, the underlying

question in this motion is whether the Defendants have carried their burden of showing that

the Plaintiff failed to exhaust his administrative remedies. If they have, then the unexhausted

claims must be dismissed without prejudice.

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 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, supra, 549 U.S. at 921, 127 S.Ct. at 216. Under Jones, it

is Defendant’s 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

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 Rule 8(a)(2) provides that a pleading must contain a “short and plain statement of

the claim showing that the pleader is entitled to relief.”

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cases that placed the burden of pleading and supporting exhaustion on plaintiffs.

B. Fed. R. Civ. P. 12(b)(6)

Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint “for failure of the

pleading to state a claim upon which relief can be granted.” Rule 12(b) also provides that

if, on consideration of a motion under paragraph (6), “matters outside the pleadings are

presented to and not excluded by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56 (summary judgment).” In assessing a Rule

12(b)(6) motion, the court accepts the plaintiff’s factual allegations as true, and asks whether,

as a matter of law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416,

419 (6th Cir. 2001). 

In two recent cases, the United States Supreme Court altered the standard for

determining whether a complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6). In Bell

Atlantic Corp. V. Twombley, 550 U.S 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the

Court, construing the requirements of Fed.R.Civ.P. 8(a)(2),3

 held that although a complaint

need not contain detailed factual allegations, its “[f]actual allegations must be enough to raise

a right to relief above the speculative level...on the assumption that all the allegations in the

complaint are true.” Id., 550 U.S. at 555, 127 S.Ct. at 1964-65 (internal citations and

quotation marks omitted). Further, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of

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4 Twombley was an antitrust case. Iqbal was a prisoner civil rights case. In any

event, it is clear that the Iqbal standard is applicable to all 12(b)(6) motions.

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the elements of a cause of action will not do.” Id. (Internal citations and quotation marks

omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio 502

F.3d 545, 548 (6th Cir. 2007). Stated differently, a complaint must “state a claim to relief that

is plausible on its face.” Twombley, 570, 1974.

In Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, L.Ed.2d (2009), the Court explained

and expanded on what it termed the “two-pronged approach” of Twombley.

4

 First, it must

be determined whether a complaint contains factual allegations, as opposed to legal

conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id., 129 S.Ct. at 1949, citing Twombley, 550 U.S. at

555, 127 S.Ct. at 1964-65. Second, the facts that are pled must show a “plausible” claim for

relief, which the Court described as follows:

“Determining whether a complaint states a plausible claim for relief will, as

the Court of Appeals observed, be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But

where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged–but it has not

‘shown[n]”–‘that the pleader is entitled to relief.’” 129 S.Ct. at 1950 (internal

citations omitted).

C. Summary Judgment

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

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as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the

non-moving party must show sufficient evidence to create a genuine issue of material fact.

Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all

reasonable inferences in favor of the non-moving party, the Court must determine “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary

judgment is appropriate “against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party,” there is no genuine issue of material fact, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).

Once the moving party in a summary judgment motion identifies portions of the

record which demonstrate the absence of a genuine dispute over material facts, the

opposing party may not then “rely on the hope that the trier of fact will disbelieve the

movant’s denial of a disputed fact,” but must make an affirmative evidentiary showing to

defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). 

The non-moving party must identify specific facts in affidavits, depositions or other

factual material showing “evidence on which the jury could reasonably find for the

plaintiff.” Anderson, 477 U.S. at 252 (emphasis added). If, after sufficient opportunity

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for discovery, the non-moving party cannot meet that burden, summary judgment is

clearly proper. Celotex Corp., 477 U.S. at 322-23.

IV. ANALYSIS

A. Exhaustion 

Defendants argue first that Plaintiff failed to exhaust both his Eight Amendment and

retaliation claims. Defendants’ Brief at 6. While Defendants acknowledge that Grievance

Identifier MRF 2007-03-02340-02f was taken to Step Three of MDOC’s grievance procedure

as required before filing suit, they assert that Plaintiff’s failure to exhaust his retaliatory job

termination claim mandates dismissal of the entire action. Id. 

First, Defendants’ contention that Plaintiff’s failure exhaust the retaliation claim also

requires the dismissal of the Eight Amendment allegations, known as the “total exhaustion

rule,” has been rejected by the Supreme Court. Grinter v. Knight, 532 F.3d 567, 578, fn 8

(6th Cir. 2008)(citing Jones v. Bock, supra, 549 U.S. 199, 210-224, 127 S.Ct. at 918-26). As

discussed, infra, Plaintiff’s failure to exhaust his retaliation claim is not fatal to his properly

exhausted Eight Amendment claim. 

1. Grievance Identifier MRF 2007-03-02340-02f (Eighth Amendment Claim)

 Current MDOC policy states that the “[d]ates, times, places and names of all those

involved in the issue being grieved are to be included” in the original grievance. MDOC

Policy Directive 03.02.130 ¶T (Effective December 19, 2003). Plaintiff’s Step One

complaint to Grievance Identifier MRF 2007-03-02340-02f, describing the events

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The Grievance Identifier number is unreadable. 

6

 Plaintiff’s response, while conceding that the second grievance was not exhausted,

now argues that the original grievance can be read to include allegations of retaliation, noting

that that “the original grievance states . . that . . . Defendant Green threatened to have

Plaintiff transferred [if he refused to operate the mixer] remains intact.” Plaintiff’s Response,

Docket #19 at 4. Plaintiff appears to argue that his administratively exhausted account of

the events leading up to his accident encompass both an Eight Amendment and retaliation

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culminating in his February 21, 2007 injury, names all of present Defendants, the date and

nature of his injury, and Defendants alleged insistence that he operate the mixer despite their

knowledge that another prisoner had recently sustained finger injuries. Complaint at pg. 9

of 16. Further, an affidavit by James Armstrong, Manager of the Grievance and Appeals

Section of the MDOC states that Plaintiff pursued Grievance Identifier MRF 2007-03-02340-

02f to Step Three of the grievance procedure, thereby exhausting his administrative remedies

as to these claims. Docket #17, Exhibit 4 at ¶16. 

2. Plaintiff’s May 28, 2007 Grievance5

 (Retaliation Claim)

Plaintiff submitted a Step One grievance on May 26, 2007 alleging that Defendant

Green told Plaintiff that he was being terminated from his food service position in retaliation

for filing the February 25, 2007 grievance. Complaint at pg. 12 of 16. Plaintiff alleges that

the termination was both retaliatory and discriminatory, arguing that other prisoners had not

received job transfers in the same circumstances. Plaintiff’s response to the present motion

states that he “has voluntarily dismissed that claim only in the context of the unexhausted

grievance that was filed,” apparently conceding that the May 28, 2007 Step One grievance

was not pursued through Step Three.6 Response, Docket #19, pg. 5 of 14. As such,

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claim. Step One of Grievance Identifier MRF 2007-03-02340-02f includes the allegation

that Defendants threatened him with a transfer if he did not operate the Hobart Mixer.

Complaint at pg. 9 of 16. However, while this allegation supports his Eight Amendment

claims, i.e., Defendants were deliberately indifferent to his safety and that Plaintiff operated

the machine under duress, Plaintiff does not allege an “adverse action” was taken in

retaliation for the assertion of his constitutional rights, nor does he even use the word

“retaliation” in the first grievance. Accordingly, the exhausted grievance cannot be

construed to include a retaliation claim. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

Cir.1999). 

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Plaintiff’s claim of a retaliatory transfer should be dismissed without prejudice. Jones v.

Bock, supra, 549 U.S. at 219-220, 127 S.Ct. at 918-19, 166 L.Ed.2d 798 (2007). 

B. Claims Against Defendants in Their Official Capacities

Defendants argue next that claims against them are barred by the Eleventh

Amendment. Defendants’ Brief at 6-7. They are partially correct. Because Plaintiff requests

monetary damages but not injunctive relief, Defendants should be dismissed in their official

capacities. Monetary claims (unlike requests for purely injunctive relief against §1983

defendants in their official capacities) i.e, in their capacity as agents of the state under 42

U.S.C. § 1983, are subject to dismissal on the basis of the immunity granted by the Eleventh

Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309-

10, 105 L.Ed.2d 45 (1989). 

C. Qualified Immunity

Defendants argue briefly that they are entitled to dismissal of the individual capacity

claims on the basis of qualified immunity. Defendants’ Brief at 7-8. 

“Under the doctrine of qualified immunity, ‘government officials performing

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More recently “the Supreme Court reconsidered the sequential inquiry set forth in

Saucier, “concluding that, ‘while the sequence set forth there is often appropriate, it should

no longer be regarded as mandatory.’” Moldowan v. City of Warren, — F. 3d — 2009 WL

2176640, at *13 (6th Cir. 2009)(citing Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808

(2009)). 

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discretionary functions generally are shielded from liability from civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Phillips v. Roane County, 534 F.3d 531, 538 (6th

Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There are generally

two inquiries in a qualified immunity analysis: (1) did the defendant violate a constitutional

right, and (2) was the right clearly established to the extent that a reasonable person in the

defendant’s position would know that the conduct complained of was unlawful. Saucier v.

Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).7

 

Defendants argue that the retaliation claim found in Plaintiff’s May 28, 2007

grievance is “wholly conclusory.” Defendants” Brief at 8. For the reasons set forth in

section A. 2. of the analysis, supra, Plaintiff’s conceded failure to exhaust his retaliation

claim requires its dismissal without prejudice. As such, the Court declines to consider the

merits of the retaliation claim. “A prisoner's failure to comply with the PLRA's exhaustion

requirement deprives a district court of the ability to address the merits of his claims.”

Johnson v. County of Wayne, 2008 WL 4279359, at *3 (E.D.Mich. 2008)(Steeh, J.)(citing

Jones v. Bock, supra, 549 U.S. at 219-220, 127 S.Ct. at 918-19, 166 L.Ed.2d 798 (2007)).

However, somewhat confusingly, Defendants’ qualified immunity argument omits all

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However, Defendants’ reply, entitled “Defendants' Response to Plaintiff's Answer

Opposing Defendants' Motion for Summary Judgment,” addresses the Eight Amendment

claims for the first time, including affidavits by Defendants VanAcker and Green, and a

picture of a warning sign affixed to Hobart Mixer in question. Reply, Docket #20,

Exhibits 6, 7, 9. 

The Court cannot consider issues raised for the first time in a reply brief. Lexicon,

Inc. v. Safeco Ins. Co. of America, Inc., 436 F.3d 662, 676 (6th Cir.2006) (a district court

properly declines to consider an issue raised for the first time in a reply brief)(citing

Sundberg v. Keller Ladder, 189 F.Supp.2d 671, 682-83 (E.D.Mich.2002) (noting, in the

context of summary judgment, “it is not the office of a reply brief to raise issues for the

first time”)(citation omitted)).” 

Defendants attempt to skirt this rule by arguing that Plaintiff did not raise the Eight

Amendment claim until filing his response to their summary judgment motion. Reply at 1

(citing Plaintiff’s Response, Docket #19). This argument is without merit. Contrary to this

assertion, Plaintiff stated at Step One of Grievance Identifier MRF 2007-03-02340-02f

(attached to the Complaint) that in the events leading up to the amputation of his fingers,

Defendants demonstrated “deliberate indifference” to his “health and safety.” Complaint at

9. Moreover, the Complaint proper, alleging that the injury was the result of MDOC staff

Defendants “forc[ing]” him to operate the machine despite his lack of training, by itself states

an Eighth Amendment claim. Id. at 6. 

 

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mention of the exhausted Eighth Amendment claims found in Grievance Identifier MRF

2007-03-02340-02f. Although Defendants’ filed a “summary judgment motion,” the brief

fails to include the applicable standard of review. Further, Defendants’ motion is

unaccompanied by affidavits by Defendants or other evidence supporting the argument that

they are entitled to judgment as a matter of law on the Eight Amendment claims. As such,

Plaintiff’s Eighth Amendment claims, unchallenged on their merits in the present motion

should not be dismissed.8

 

IV. CONCLUSION

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 For these reasons, I recommend the following:

1). that the motion be DENIED as to Plaintiff’s Eighth Amendment claim against 

 Defendants in their personal capacities.

2). that the motion be GRANTED as to the official capacity claims, dismissing those

claims against Defendants in their official capacities.

 

3). that the motion be GRANTED as to Plaintiff’s claim of retaliatory job

termination, based on his failure to exhaust his administrative remedies, dismissing

this claim WITHOUT PREJUDICE. 

 Any objections to this Report and Recommendation must be filed within ten (10)

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 ten (10) 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. 

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s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: August 4, 2009

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