UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALBERT ELLINGTON, #621685,

Plaintiff, CIVIL ACTION NO. 09-10895

v. DISTRICT JUDGE MARIANNE O. BATTANI

HUGH WOLFENBARGER, MAGISTRATE JUDGE MARK A. RANDON

JOE SCOTT and JOHN DOE,

Defendants.

 /

REPORT AND RECOMMENDATION GRANTING

DEFENDANTS’ MOTION TO DISMISS (DKT. NO. 11) AND DENYING

MOTION FOR SUMMARY DISPOSITION (DKT. NO. 14) AS MOOT

1. INTRODUCTION

Plaintiff, an inmate in the custody of the Michigan Department of Corrections

(“MDOC”), filed this action under 42 U.S.C. § 1983, alleging that multiple defendants violated

his constitutional rights. Presently before the Court is the Motion to Dismiss of Defendants Joe

Scott and Hugh Wolfenbarger (referred to collectively as “Defendants”). Defendants contend that

Plaintiff’s claims against them should be barred because he failed to properly exhaust his

administrative remedies by filing an untimely and insufficient MDOC grievance. Plaintiff has

not filed a response to Defendants’ motion. For the reasons discussed below, it is recommended

that Defendants’ Motion to Dismiss (Dkt. No. 11) be GRANTED. 

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 Furthermore, after the filing of the Motion to Dismiss, Defendants also filed a Motion for

Summary Judgment. Without consideration on the merits, it is also recommended that the

Motion for Summary Judgment (Dkt. No. 14) be DENIED as moot. Last, it is recommended that

the four remaining unnamed and unserved defendants be DISMISSED without prejudice.

2. FACTUAL BACKGROUND

A. Plaintiff’s Allegations

Plaintiff, Albert Ellington, is currently incarcerated at the Macomb Correctional Facility

in New Haven, Michigan (“MCF”). He complains that on August 5, 2008, he was injured after

another inmate hit him in the face with a clothing iron that was freely available for use by

prisoners, yet unsecured. (Dkt. No. 1) Plaintiff maintains that the conduct of Defendants, and

four unnamed staff members at MCF, in ignoring the potential danger posed by this unsecured

iron, violated his Eighth Amendment rights. (Id.) As a result, Plaintiff seeks a declaratory

judgment, and compensatory and punitive damages for the physical injuries he sustained. (Id.)

B. The MDOC’s Grievance Procedure

The MDOC provides prisoners with a method of seeking redress for alleged violations of

policy and procedure or unsatisfactory conditions of confinement. The grievance procedure and

applicable rules are set forth in MDOC Policy Directive 03.02.130 (“the Policy”) (Dkt. No. 11,

Ex. A). The Policy was last updated on March 5, 2007, and became effective for all grievances,

including Plaintiff’s, filed after July 9, 2007. 

The Policy outlines a three-step written grievance procedure. Prior to filing a grievance at

Step I, a prisoner is generally required to seek an informal resolution of the issue with the staff

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member involved. A prisoner may file a grievance at the next step if he is dissatisfied with the

response received at the previous step, or if a timely response is not received. The Policy

requires prisoners to adhere to the following deadlines and directions with respect to the filing of

grievances:

P. Prior to submitting a written grievance, the grievant shall

attempt to resolve the issue with the staff member involved within

two business days after becoming aware of a grievable issue, unless

prevented by circumstances beyond his/her control or if the issue

falls within the jurisdiction of the Internal Affairs Division in

Operations Support Administration. If the complaint is not

resolved, the grievant may file a Step I grievance. The Step I

grievance must be filed within five business days after the grievant

attempted to resolve the issue with staff.

* * *

R. A grievant shall use the Prisoner/Parolee Grievance form (CSJ247A) to file a Step I grievance; a Prisoner/Parolee Grievance

Appeal form (CSJ247B) shall be used to file a Step II or Step III

grievance. The forms may be completed by hand or by typewriter

however, handwriting must be legible. The issues shall be stated

briefly but concisely. Information provided shall 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.

* * *

V. Within five business days after attempting to resolve a

grievable issue with staff, a grievant may send a completed

Prisoner/Parolee Grievance form (CSJ-247A) to the Step I

Grievance Coordinator designated for the facility, field office or

other office being grieved.

(Emphasis added)(Dkt. No. 11, Exhibit A)

C. Plaintiff’s Grievance

Plaintiff filed a single grievance in connection with the allegations made in his

Complaint. In Grievance MRF 08-10-0 I0900-28E, filed on October 16, 2008 (the “Grievance”)

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(Dkt. No.1, p. 6), Plaintiff complained about being attacked with a clothing iron and alleged that

“Housing Unit C.O.’s, ARUS’s, ARUM, ADW of Housing, and the Warden of MRF were

negligent, careless, and deliberately indifferent to prisoner safety by failing to act reasonably in

response to the obvious danger of an unsecured iron.” Although the individuals involved were

identified by position, they were not named. The Grievance was rejected at Step I as untimely,

because it was filed more than two months after the date of the incident, which Plaintiff stated

happened on August 5, 2008.

3. ANALYSIS

A. The Effect of Plaintiff’s Failure to Respond to Defendants’ Motion to Dismiss1

Local Rule 7.1 (b) states that “[a] respondent opposing a motion must file a response,

including a brief and supporting documents then available.” “[W]hile pro se litigants may be

entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack

of formal training, there is no cause for extending this margin to straightforward procedural

requirements that a layperson can comprehend as easily as a lawyer.” Jourdan v. Jabe, No.

90-1850, slip op. at 1-2 (6th Cir. Oct. 9, 1991) (citing Estelle v. Gamble, 429 U.S. 97, 106

(1976); Haines v. Kerner, 404 U.S. 519, 520 (1972)).

On May 19, 2009, Defendants filed the instant motion to dismiss. (Dkt. No. 11) On that

same date, Magistrate Judge Komives ordered Plaintiff to file a response to the motion on or

On August 3, 2009, Plaintiff did file a response to the Defendants’ Motion for Summary 1

Judgment. (Dkt. No. 20) However, the response failed to address the issue of administrative

exhaustion at issue in Defendants’ Motion to Dismiss.

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before June 30, 2009. (Dkt. No. 12) To date, however, Plaintiff has not filed a response to the

motion to dismiss. Therefore, Defendants’ motion may be deemed unopposed. Humphrey v. U.S.

Attorney General’s Office, 279 Fed.Appx. 328, 2008 WL 2080512 (6th Cir., May 15, 2008).

Notwithstanding the lack of opposition, Defendants’ motion is still well-taken in light of the

analysis set forth below. 

B. Standard of Review

A complaint fails to state a claim upon which relief can be granted when it is clear that no

relief could be granted under any set of facts that could be proved consistent with the allegations

of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). To state a claim

under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal

constitution or laws and must show that the deprivation was committed by a person acting under

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d

810, 814 (6th Cir. 1996). Because §1983 is a method for vindicating federal rights, not a source

of substantive rights itself, the first step in an action under § 1983 is to identify the specific

constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266 (1994). However,

prisoner suits, alleging constitutional deprivations while incarcerated, are subject to the

additional prerequisite of satisfying the administrative exhaustion requirements of 42 U.S.C. 

§ 1997e(a). Porter v. Nussle, 534 U.S. 516, 524 (2002).

C. The Prison Litigation Reform Act

Under the Prisoner Litigation Reform Act (“PLRA”), a prison inmate cannot bring a civil

rights action challenging prison conditions until “such administrative remedies as are available

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are exhausted.” 42 U.S.C. § 1997e(a). Specifically, a prisoner must follow the state corrections

system’s grievance procedure and properly exhaust all administrative remedies before filing an

action in federal court. Woodford v. Ngo, 548 U.S. 81, 88 (2006). Proper exhaustion

includes “compliance with an agency’s deadlines and other critical procedural rules.” Id. at

90. As the court in Woodford explained:

The benefits of exhaustion can be realized only if the prison

grievance system is given a fair opportunity to consider the

grievance. The prison grievance system will not have such an

opportunity unless the grievant complies with the system’s critical

procedural rules. A prisoner who does not want to participate in

the prison grievance system will have little incentive to comply

with the system’s procedural rules unless noncompliance carries a

sanction.... for example, a prisoner wishing to bypass available

administrative remedies could simply file a late grievance without

providing any reason for failing to file on time. If the prison then

rejects the grievance as untimely, the prisoner could proceed

directly to federal court. And acceptance of the late grievance

would not thwart the prisoner’s wish to bypass the administrative

process; the prisoner could easily achieve this by violating other

procedural rules until the prison administration had no alternative

but to dismiss the grievance on procedural grounds. We are

confident that the PLRA did not create such a toothless scheme.

(Emphasis added) Id. at 95. Therefore, an untimely or otherwise improper grievance does not

fulfill the PLRA exhaustion requirement. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme

Court overturned the Sixth Circuit’s total exhaustion rule and its requirement that prisoners

specifically plead exhaustion in their complaints. However, like the instant motion, failure to

exhaust may still be raised as an affirmative defense. Id. at 216.

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1. Plaintiff’s Failure to Timely File the Grievance was a Violation of the Policy

On its face, the Grievance was not filed on time. The Grievance lists the date of the

incident as August 5, 2008. Therefore, even assuming Plaintiff attempted to resolve the issue

informally, his step I grievance was required to be filed by August 14, 2008 (seven business days

later). Plaintiff did not file the Grievance until October 16, 2008, more than 60 days later. He

was notified by an MCF Administrative Assistant that the Grievance was untimely on October

22, 2008. The Grievance did not offer any justification for the delay, and Plaintiff’s lack of

response to the instant motion suggests that he does not oppose the MCF’s determination of

untimeliness. Accordingly, Plaintiff’s should not be permitted to advance his claims in federal

court by circumventing the Policy, and Defendants’ motion should be granted on this ground. 

Woodford, 548 U.S. at 95.

The more difficult issue of whether the Grievance, which identified Defendants by

position but failed to name them, satisfies the Policy need not be addressed. As discussed 2

above, the Grievance was clearly untimely and precludes this action.

D. The Unserved and Unnamed Defendants Should be Dismissed

As to the remaining John Doe defendants, I recommend that they be dismissed without

prejudice. In general, "the use of unnamed defendants is not favored in the federal courts.”

Haddad v. Fromson, 154 F.Supp.2d 1085, 1093 (W.D.Mich.2001). “An inmate who brings a

It should be noted that while the Policy requires individuals involved in the grievance to 2

be “named,” an argument can be made that “naming their position” is sufficient. This is

sufficient to place the prison on notice of the individuals involved, providing adequate

opportunity to resolve the issue administratively. Woodford, 548 at 89. 

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civil rights complaint must specifically identify each defendant against whom relief is sought and

must give each defendant notice of the action by serving upon him a summons and copy of the

complaint.” Reed-Bey v. Pramstaller, No. 06-10934, 2007 WL 2421422, *2 (E.D.Mich. Aug.23,

2007), citing Feliciano v. DuBois, 846 F.Supp. 1033, 1048 (D.Mass.1994). Under Fed. R. Civ. P.

4(m), defendants must be served within 120 days of filing the complaint. Here, Plaintiff has

failed to identify or serve the John Doe defendants and this case has been pending for over 120

days (since March 10, 2009); thus, I recommend that the unnamed Defendants be dismissed

without prejudice. Mackall v. Doe, No. 05-60083-AA, 2005 WL 1843449, *1 (E.D. Mich. July

29, 2005), citing Awdish v. Pappas, 159 F.Supp.2d 672, 673, n. 1 (E.D. Mich.2001), and Johnson

v. City of Ecorse, 137 F.Supp.2d 886, 892 (E.D. Mich.2001). This Report will serve as notice to

Plaintiff under Rule 4(m).

 4. RECOMMENDATION

For the reasons stated above, it is RECOMMENDED that the Defendants’ Motion to

Dismiss (Dkt. No. 11) be GRANTED and that Defendants’ Motion for Summary Judgment (Dkt.

No. 14) be DENIED as moot. IT IS FURTHER RECOMMENDED that the four remaining

unserved and unnamed defendants be dismissed without prejudice.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act 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

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues,

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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 no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

each issue contained within the objections specifically and in the same order raised.

s/Mark A. Randon 

MARK A. RANDON

UNITED STATES MAGISTRATE JUDGE

Dated: August 21, 2009

Certificate of Service

I hereby certify that a copy of the foregoing document was served on the parties of record on this

date, August 21, 2009, by electronic and/or first class U.S. mail.

s/Melody R. Miles 

Case Manager to Magistrate Judge Mark A. Randon

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