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Plaintiff is currently incarcerated at the St. Louis Correctional Facility, 8585 Croswell

Road, St. Louis, Michigan 48880.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BILLY MILES, 

Plaintiff, CIVIL ACTION NO. 09-11383 

v. DISTRICT JUDGE BERNARD A. FRIEDMAN

 MAGISTRATE JUDGE DONALD A. SCHEER

DOMINIC VERDERESE,

Defendant.

______________________________/

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: The Complaint should be dismissed due to plaintiff’s failure to

exhaust available administrative remedies. 

* * *

Plaintiff, while incarcerated at the Standish Maximum Correctional Facility (SMF),1

in Standish, Michigan filed the instant Complaint, pursuant to 42 U.S.C. § 1983, on April

13, 2009, against the Defendant, who is employed as a dentist by the Michigan Department

of Corrections (MDOC). Plaintiff alleges that the Defendant was deliberately indifferent to

his serious medical needs. Claiming violations of his Eighth Amendment rights under the

federal Constitution, Plaintiff sought injunctive relief as well as compensatory damages. For

reasons stated below, the Court should dismiss the Complaint without prejudice for failure

to exhaust administrative remedies.

EXHAUSTION OF REMEDIES

The Prison Litigation Reform Act (PLRA) of 1995 requires that a prisoner exhaust

all administrative remedies before filing a section 1983 action. Specifically, the statute

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provides, “no action shall be brought with respect to prison conditions under section 1983

. . . by a prisoner confined in any jail, prison or other correctional facility until such

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

Supreme Court has declined to “read futility or other exceptions into statutory exhaustion

requirements where Congress has provided otherwise.” Booth v. Churner, 532 U.S. 731,

741 n.6 (2001). 

In the case of Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court explained

that lack of exhaustion is an affirmative defense that must be raised by the defendants. The

Bock Court reiterated that an inmate’s failure to comply with the PLRA’s exhaustion

requirement deprives the district court of the ability to address the merits of the prisoner’s

claims. The Court is required to dismiss “unexhausted” claims without prejudice. Id. at 215.

Defendant moved for dismissal on July 9, 2009, arguing that Plaintiff had not

exhausted his administrative remedies against him. While Plaintiff filed seven grievances

with the MDOC since 2006, none of the grievances complained about the Defendant or his

dental problems (See Affidavit of James Armstrong, the grievance and appeals

administrator of the MDOC, attached as Exhibit A, attachment 1 to Defendant’s Motion to

Dismiss). Plaintiff has not filed a response to Defendants’ Motion to Dismiss, even though

he was given ample opportunity to do so. 

In order to properly exhaust administrative remedies under the PLRA, a prisoner

must comply with the State’s procedures regarding inmate grievance filings. Woodford v.

Ngo, 548 U.S. 81 (2006). The prison’s requirements define the boundaries of proper

exhaustion, and proper exhaustion means using all steps the agency holds out and

following them faithfully. Jones v. Bock, 549 U.S. 212. 

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Defendant has raised exhaustion as an affirmative defense, and has moved to

dismiss on that basis. Plaintiff has failed to demonstrate that he pursued a grievance

against the defendant at all levels of administrative review, and he has failed to show that

he was precluded from doing so. As a result, the Complaint should be dismissed, without

prejudice, on the basis of Plaintiff’s failure to exhaust administrative remedies. 

The parties are advised that any objections to this Report and Recommendation

must be filed with the Court within ten (10) days after they are served with a copy, or further

appeal from Judge Friedman’s acceptance thereof is waived.

 s/Donald A. Scheer

 DONALD A. SCHEER 

 UNITED STATES MAGISTRATE JUDGE

DATED: August 27, 2009

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on August 27, 2009 that I electronically filed the foregoing paper with

the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on August 27, 2009: Billy Miles.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

 

 

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