UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TOMMY HALL, #228329

Plaintiff, CIVIL ACTION NO. 09-10933

v. DISTRICT JUDGE DAVID M. LAWSON

RAJA, JAYNA SHARPLEY, MAGISTRATE JUDGE MARK A. RANDON

RAWAL, and DEAN JOHNSON,

Defendants.

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REPORT AND RECOMMENDATION TO DENY

DEFENDANT VISHNAMPET THYAGARAJAN’S SECOND MOTION

TO DISMISS (DKT. NO. 38) ON THE EXHAUSTION ISSUE

I. INTRODUCTION

Plaintiff, a Michigan prisoner, filed this action under 42 U.S.C. § 1983, alleging that

several prison healthcare officials violated his constitutional rights by failing to provide him

medical care following back surgery. Presently before the court is the second motion to dismiss

of Defendant Vishnampet Thyagarajan, M.D. (apparently misidentified by Plaintiff in his

complaint as “Dr. Raja”). (Dkt. No. 38) Dr. Thyagarajan contends that Plaintiff’s claims against 1

him should be dismissed for two reasons: (1) Plaintiff’s prison grievance was not

administratively exhausted, as it did not specifically name or state any allegations against Dr.

 Dr. Thyagarajan’s (spelled Thyagarajian in Plaintiff’s medical records) first motion to 1

dismiss was denied for failure to seek concurrence. (Dkt. No. 11)

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Thyagarajan; and (2) Plaintiff’s pro se complaint fails to state a claim against him upon which 2

relief could be granted, and allowing Plaintiff to amend would be futile because of his failure to

exhaust. In response, Plaintiff argues that his grievance provided sufficient notice to prison

officials of Dr. Thyagarajan’s involvement in Plaintiff’s alleged improper medical care.

Plaintiff’s brief in response to the motion also seeks leave to amend his complaint. 

Although Dr. Thyagarajan was not identified by name in Plaintiff’s grievance, prison

officials responded to Plaintiff’s grievance on the merits, without noting this procedural

deficiency, and the grievance was otherwise sufficient to identify the involvement of Dr.

Thyagarajan. For these reasons, it is RECOMMENDED that Defendant Thyagarajan’s second

motion to dismiss be DENIED on the issue of exhaustion. As to Dr. Thyagarajan’s second 

argument, the undersigned agrees that Plaintiff’s complaint, as written, fails to state a claim

against Dr. Thyagarajan. However, since the complaint was drafted by a prisoner, lacking in

legal training, by separate order, Plaintiff’s counsel will be afforded an opportunity to move for

leave to amend the complaint (after seeking concurrence) limited to the following four issues

raised in Plaintiff’s prison grievance: (1) denial of a second mattress; (2) failure to receive pain 3

medication; (3) failure to schedule an MRI; and (4) failure to be seen by a “pain doctor.” If

Plaintiff fails to move for leave to amend within twenty-one (21) days, Dr. Thyagarajan should

be dismissed as a party to this lawsuit.

 At the time Plaintiff filed his complaint, in March of 2009, he was not represented by 2

counsel. However, Attorney Shirley Burgoyne filed an appearance on behalf of Plaintiff on

September 14, 2009. (Dkt. No. 35)

 There appears to be no involvement of Dr. Thyagarajan in the alleged denial of a 3

second mattress to Plaintiff.

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 II. FACTS

A. Background

1. Plaintiff’s Complaint

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At all times relevant to this case, Plaintiff, Tommy Hall, has been incarcerated at the

Parnell Correctional Facility in Jackson, Michigan (“SMT”). Plaintiff’s pro se complaint alleges

that he has a congenital birth defect that results in his spinal cord narrowing and underwent two

surgeries to relieve nerve compression: one in April 2000 while he was previously

incarcerated, and a spinal-fusion surgery on April 23, 2008, which was performed

by Dr. T. Spencer, outside of prison. Plaintiff alleges that he had four screws and four plates

inserted during his second back surgery. Plaintiff states that, when he returned to prison on

August 14, 2008, he repeatedly requested follow-up medical care (including pain medication and

physical therapy), but these requests continually were denied beginning on August 28, 2008. In

particular, Plaintiff complains that Dr. Thyagarajan, his primary care-giver, “refused to take

Plaintiff’s complaints seriously,” and refused to schedule treatment or refer Plaintiff for

diagnostic testing or consults with specialists, “which constituted an undue infliction and

extension of pain.” (Dkt. No. 1) Plaintiff further alleges generally that the alleged refusal of all

Defendants’ to treat Plaintiff’s medical condition exacerbated his medical condition causing

progressive nerve damage, which resulted in bladder control problems and a loss of sensation in

his penis, which made him incapable of obtaining an erection. As a result, Plaintiff seeks

 Section A(1) of the facts is taken primarily from the district court’s opinion of March

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30, 2010. (Dkt. No. 44)

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injunctive relief, and an award of compensatory and punitive damages against all Defendants for

their denial of adequate medical care. (Id.)

2. 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. 14,

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

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. 

In outlining what should be included in a grievance, the Policy requires, in part, that:

R. The issues should be stated briefly and concisely.

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. 

(Emphasis added).

3. Plaintiff’s Appointment with Dr. Thyagarajan Prior to Filing the Grievance

Plaintiff was transferred to the SMT from another facility on September 11, 2008. (Dkt.

No. 42, p. 8) Plaintiff’s first medical appointment with Dr. Thyagarajan was on September 19,

2008. (Dkt. No. 42, p. 9) According to the medical note prepared by Dr. Thyagarajan, during his

appointment, Plaintiff was “angry[,] threatening grievance, [and] demanding stronger pain meds.” 

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Dr. Thyagarajan placed Plaintiff on “ultram, neurontin until PMC [Pain Management Committee]

takes over the management [of his pain].” The Ultram medication was subsequently denied by

Dr. Pandya, the Regional Medical Officer (“RMO”). (Dkt. No. 42, p. 10). According to the

medical records, it appears that Dr. Thyagarajan was the only Medical Provider (“MP”) that met

with Plaintiff prior to the filing of his grievance. (Dkt. No. 42, Ex. B)

4. Plaintiff’s Grievance

On October 2, 2008, Plaintiff filed Grievance SMT 08-10-1184-12z (“the Grievance”)

(Dkt. No. 14, Ex. B). At Step I, the Grievance, in its entirety, read as follows:

It is clearly stated in grievant’s file that grievant’s doctor performed

back surgery prior to going to prison. I have wrote a kite on several

occasions explaining to medical staff the pain that this thin mattress

is causing me. I have requested 2 mattresses pursuant to P.D.

04.06.160 (e) however the medical staff seems to think they know

how I feel better than I do. Nor has any pain medication been given

to me for almost 60 days which causes me to be in consistent pain

not being able to sleep due to the pain. I have not been to a pain

doctor since I’ve been at RG&C or SMT. Nor has an MRI been

scheduled. The pain I’m going through is something I was born

with. I had the surgery 4/23/08 at Metro Health Hospital and my

doctor states that it takes a full year to obtain the optimum result. It

is quite clear that this disregard for authority and insubordination as

well as wk rule #13 “Failure to enforce or follow rules, regulations,

policies or procedures and rule #5 conduct unbecoming an

employee.” Making the decision to force me to live in pain is

clearly a violation of the 8th Amendment of the United States

Constitution “cruel and unusual punishment.” 

Relief requested: That grievant receives a special accommodation 

for 2 mattresses, pain medication and that all medical personnel 

involved are punished per policy.

(Emphasis added).

The Grievance did not name Dr. Thyagarajan or physically describe him. However, it did

indicate that Plaintiff had explained to “medical staff” that he was in pain and that he had not been

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given “pain medication . . . for almost 60 days;” that an MRI had not been scheduled; and that he

had not been seen by a pain doctor. As relief, the Grievance sought “a special accommodation for

2 mattresses, pain medication, and that all medical personnel involved are punished per policy.” 

Other than the Grievance, no other administrative procedures were initiated regarding the

allegations in Plaintiff’s Complaint.

5. The Prison’s Response to the Grievance

In the prison’s response to the Grievance at step I, D. Richardson, a nurse, summarized

 Plaintiff’s complaint as follows: “Grievant contends he is denied treatment for chronic back

pain, specifically double mattress and pain medication.” (Dkt. No. 42, Ex. A) Nurse

Richardson’s response noted that “MP requested Regional Medical Officer approval for short time

pain medication until Pain Management Committee could review case” and that Plaintiff was

being “treated, evaluated, diagnostic testing conducted and monitored by the MP, who is

responsible for determining the most appropriate course of treatment.” Last, Nurse Richardson

implicitly acknowledged that, through his grievance, Plaintiff was expressing a complaint against

his MP: “Disagreement with the medical judgment of the MP doesn’t support a claim that the

treatment plan is inappropriate.” At no time did prison officials advise Plaintiff of his failure to

specifically name the “medical staff” against whom he grieved.

Plaintiff submitted an appeal at Step II. In it he stated that the prison’s contention, in its

Step I response, that he was “being treated, evaluated, monitored, and afforded diagnostic testing

by the MP” was “simply not true.” The prison’s response at step II was prepared by Latrice Hood,

Region III Health Care Administrator. It provided a detailed summary of Plaintiff’s medical

history from August 26, 2008 to November 21, 2008. In the medical summary, there were three

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separate entries dated before Plaintiff’s grievance (9/19/08, 9/24/08 and 9/25/08) referencing

actions by the MP (Dr. Thyagarajan). However, the name “Dr. Thyagarajan” was not included in

the summary – nor for that matter was the name of any “medical staff” disclosed anywhere in the

prisons’ responses to the Grievance, except by reference to the acronyms: “RN,” “RMO,” “MP,”

“PA” and “RMO,” etc. The step II summary noted that Plaintiff sought mattress 5

accommodations and pain medications, and that the Grievance was denied as being “resolved.” 

On January 13, 2009, following a review of the step II record by the Quality Assurance Office, the

Grievance was summarily denied at step III.

III. ANALYSIS

A. 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). 

 The single exception was the mention of Dr. Rawal, by name, in the last two lines of 5

the summary.

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B. The Prison Litigation Reform Act

1. The Meaning and Purpose of Proper Exhaustion

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 are

exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court defines proper exhaustion as “using all

steps that the agency holds out, and doing so properly (so that the agency addresses the issues on

the merits).” Woodford v. Ngo, 548 U.S. 81, 90 (2006), quoting Pozo v. McCaughtry, 286 F.3d

1022, 1024 (7th Cir. 2002) (emphasis in original). “Proper exhaustion demands compliance with

an agency’s deadlines and other critical procedural rules because no adjudicative system can

function effectively without imposing some orderly structure on the course of its proceedings.” 

Id. The Supreme Court also observed that “[t]he PLRA attempts to eliminate unwarranted

federal-court interference with the administration of prisons, and thus seeks to ‘afford corrections

officials time and opportunity to address complaints internally before allowing the initiation of a

federal case.’” Id. at 93, quoting Porter v. Nussle, 534 U.S. 516, 525 (2002). Exhaustion serves a

dual purpose: it gives prisoners “an effective incentive to make full use of the prison grievance

process and accordingly provides prisons with a fair opportunity to correct their own errors.” Id.

at 94.

2. Plaintiff sufficiently exhausted his administrative remedies as to Dr.

Thyagarajan

Consideration of Dr. Thyagarajan’s second motion to dismiss follows the District Judge’s

Order adopting the undersigned’s report and recommendation finding that the Grievance was

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sufficient to allow his complaint to proceed against co-Defendant Jayna Sharpley, even though she

was not specifically named therein. (Dkt. No. 44) In particular, the Court reasoned that:

the Sixth Circuit has confirmed that since the Supreme Court

decided Jones v. Bock, courts ought not impose severe technical

requirements on prisoners who comply with the spirit and purpose

of the administrative exhaustion rules. “[I]t is sufficient for a court

to find that a prisoner’s [grievance] gave prison officials fair notice

of the alleged mistreatment or misconduct that forms the basis of

the constitutional or statutory claim made against a defendant in a

prisoner’s complaint.” Bell v. Konteh, 450 F.3d 651, 654 (6th Cir.

2006). 

A fair indicator that the purpose of the grievance was fulfilled is the

prison’s response to the inmate’s complaint. If the information in

the grievance is too vague or imprecise, a response so indicating

would tell the interested parties that more detail is necessary.

However, when the prison officials address the merits of the

prisoner’s complaint without even mentioning a problem identifying

the object of the grievance, the administrative system has worked

and the prison officials have had the “opportunity to correct [their]

own mistakes.” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (internal

citation and quotation marks omitted). (Dkt. No. 44, p. 7)

The Court’s reasoning is equally applicable to Dr. Thyagarajan. Although Plaintiff did not

specifically name Dr. Thyagarajan, the Grievance was sufficient to put prison officials on notice

of the involvement of Dr. Thyagarajan in Plaintiff’s allegations of mistreatment by “medical

staff.” It appears that Dr. Thyagarajan was the only MP to see Plaintiff at SMT prior to the filing

of the Grievance. And, in its response to the Grievance at Step I, the prison not only noted the

involvement of the MP (Dr. Thyagarajan) in Plaintiff’s treatment – but acknowledged that

Plaintiff disagreed with the MP’s treatment decisions.

Further, in response to the Grievance, the prison failed to even mention Plaintiff’s

“procedural default” of failing to specifically name the “medical staff” against whom he grieved. 

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Instead, they correctly deduced that the Grievance involved Dr. Thyagarajan and responded

accordingly. As the Sixth Circuit recently recognized, a prison may properly preserve its right to

subsequently seek dismissal of a prisoner’s federal lawsuit for failure to exhaust, where it both

denies the grievance on the merits and denies it for failure to comply with “critical grievance

procedures.”

Where the [prisoner’s] grievance is denied alternatively on the

merits and for failure to comply with critical grievance procedures,

a later action will be subject to dismissal for failure to properly

exhaust under Woodford. See Grear v. Gelabert, No. 07-cv-203,

2008 WL 474098, at *2, n. 1 (W.D. Mich. Feb. 15, 2008) (“A state

is, of course, always free to reject a grievance both for failure to

properly comply with available procedures and on the merits.... As

long as the ‘procedural default’ rejection is clear, a subsequent §

1983 claim based on the grievance will be subject to dismissal for

failure to properly exhaust.”).

Vandiver v. Correctional Medical Services, Inc., 326 Fed.Appx 885 (6th Cir. May 1, 2009). Here,

prison officials failed to even mention Plaintiff’s failure to comply with the Policy.

Dr. Thyagarajan also contends that the Grievance did not state any allegations against him,

and that it did not address Plaintiff’s subsequent complaint allegations (i.e., that Dr. Thyagarajan

“did not refer Plaintiff for diagnostic tests or consultations with specialists.”). (Dkt. No. 38, p. 7)

These arguments are not well taken. The Grievance clearly states that “I have not been to a pain

doctor since I’ve been at RG&C or SMT. Nor has an MRI been scheduled.” Given the liberal

construction afforded prisoner filings, this can be interpreted to claim, without “active

interpretation,” a of lack of access to a specialist (pain doctor) and a lack of diagnostic testing (an

MRI). See, Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (“The appropriate liberal

construction [afforded prisoner pleadings] requires active interpretation in some cases. . .”). As

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Plaintiff’s MP, it is likely that Dr. Thyagarajan would be involved in making these referrals. As

such, Plaintiff properly exhausted his administrative remedies as to Dr. Thyagarajan. 

Since the undersigned finds that Plaintiff properly exhausted his administrative remedies

as to Dr. Thyagarajan, Dr. Thyagarajan’s primary objection to denying Plaintiff to leave amend his

complaint – as being futile – also fails. This issue will be addressed in a separate order permitting

Plaintiff, a prisoner now represented by counsel, to seek leave to amend his Complaint within

twenty-one (21) days; however, any amendment shall be limited to the following four areas

addressed in the Grievance: (1) denial of a second mattress; (2) failure to receive pain

medication; (3) failure to schedule an MRI; and (4) failure to be seen by a “pain doctor.” If

Plaintiff fails to file an amended complaint, then Dr. Thyagarajan should be dismissed from this

suit.

IV. CONCLUSION

For the reasons discussed above, the undersigned recommends that Defendant Vishnampet

Thyagarajan, M.D.’s second motion to dismiss (Dkt. No. 38) be DENIED.

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

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(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, 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.

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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 fourteen (14) 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: April 26, 2010

Certificate of Service

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

on this date, April 26, 2010.

s/Melody R. Miles 

Case Manager to Magistrate Judge Mark A. Randon

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