UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DERRICK ALLEN,

Plaintiff,

v. Case No. 09-11281

Honorable David M. Lawson

CORRECTIONAL MEDICAL SERVICES, INC., Magistrate Judge Mark A. Randon

Defendant.

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ORDER REJECTING MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION, SUSTAINING PLAINTIFF’S OBJECTIONS IN PART,

DENYING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT, OVERRULING OBJECTIONS TO CERTAIN ORDERS,

DISMISSING CERTAIN DISCOVERY MOTIONS, AND

REFERRING CASE FOR FURTHER CONSIDERATION

This matter is before the Court on a report filed by Magistrate Judge Mark A. Randon

recommending that the defendant’s motion to dismiss be granted and objections to Judge Randon’s

orders filed by the parties in this case. The plaintiff, a prisoner in the custody of the Michigan

Department of Corrections, filed a pro se complaint alleging that the defendant violated the Eighth

Amendment by refusing him medical treatment to address intractable pain in his dominant (left)

hand that could only be corrected by surgery. The case was referred to Magistrate Judge Randon

to conduct all pretrial matters under 28 U.S.C. § 636(b)(1)(B). Thereafter, the defendant,

Correctional Medical Services, Inc. (CMS), filed a motion to dismiss alleging that the plaintiff failed

to exhaust his administrative remedies and the complaint did not state a redressable claim under the

Eighth Amendment. The plaintiff then filed multiple discovery motions and a summary judgment

motion of his own. On December 14, 2009, Judge Randon filed a report recommending that this

Court grant CMS’s motion to dismiss because Allen failed to explicitly name CMS in his prison

grievance process and thus did not properly exhaust his administrative remedies. Judge Randon
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determined that the second issue was rendered moot and that all other pending motions should be

terminated pursuant to the recommended dismissal. The plaintiff filed timely objections to the

recommendation, to which the defendant responded and the plaintiff replied. 

The Court has reviewed the matter de novo and now concludes that the magistrate judge’s

conclusion is erroneous under clear Sixth Circuit precedent, and the exhaustion requirement cannot

stand as a bar to addressing the merits of the complaint. The motion to dismiss will be denied. The

plaintiff’s objections to the magistrate judge’s interim orders on discovery will be overruled. The

case will be referred once again to the magistrate judge to conduct pretrial proceedings, beginning

with entry of a revised scheduling order and addressing the pending summary judgment motion.

Because the plaintiff’s complaint has colorable merit, the magistrate judge is directed to appoint

counsel for the plaintiff under the Court’s pro bono counsel plan. The plaintiff’s various motions

to compel discovery will be denied without prejudice to renewing them during the course of the

discovery proceedings in the case if necessary. The defendant may renew its motion to dismiss or

for summary judgment on its alternate ground at the conclusion of discovery. 

I.

According to the complaint and the motion papers, Derrick Allen was an inmate at the St.

Louis Correctional Facility (“STF”) during the relevant time. In May 2008, Allen underwent

surgery at Detroit Receiving Hospital for “extensive swelling at the palm of the left middle finger

and left ring finger.” Def.’s Mot. to Dismiss, Ex. D, Prisoner/Parolee Grievance Form Step I. This

surgery left Allen with “significant deformity, advanced OA [osteoarthritis] or RA [rheumatoid

arthritis] involving the 3rd MCP [metacarpal] joint, degenerative changes” and without “a

recognizable joint remaining.” Ibid. This defect “hinders [Allen’s] mobility in [his] daily tasks,”
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Compl. at 1, as he is left-handed[,] and causes him “constant pain & swelling.” Def.’s Mot. to

Dismiss, Ex. D, Prisoner/Parolee Grievance Form Step I.

Following surgery, Orthopedics Associates of Michigan in Grand Rapids, Michigan, saw

Allen for a consultation. Doctors Kyle L. Sperling, K. Nimr Ikram, and Mark R. DaHaan

recommended corrective and/or reconstructive surgery. On September 21, 2008, Allen requested

this surgery, asking, “when am I scheduled for hand surgery.” Pl.’s Obj., Ex. H, MDOC Request

for Services – Kite Response Medical. Registered Nurse Rosalie K. Petty responded via kite: “The

insurance company [CMS] did not authorize the surgery. Our doctor is resubmitting the request.”

Ibid.

On November 24, 2008, Allen filed grievance number STF 08-11-00888-12D1, challenging

the denial of his surgery. MDOC Policy Directive 03.02.130 (effective July 9, 2007) allows

prisoners to file grievances, and articulates the proper procedures for doing so. Inmates must first

attempt to resolve a problem orally within two business days of becoming aware of a grievable issue.

Def.’s Mot. Dismiss, Ex. A, Policy Directive (PD) 03.02.130 ¶ P. If oral resolution is unsuccessful,

the inmate may proceed to Step I of the grievance process and submit a completed grievance form

within five business days of the attempted oral resolution. Def.’s Mot. to Dismiss, Ex. A, PD

03.02.130. The policy dictates the following directions for completing grievance forms: “The issues

shall be stated briefly but 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.” Id. at ¶ R (emphasis in original).

The inmate submits the grievance to a designated grievance coordinator, who assigns it to a

respondent. 
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If the inmate is dissatisfied with the prison’s Step-I response, he may appeal to Step II within

ten business days, or if he does not receive a timely response, within ten business days after the

response was due. Prison policy designates the regional health administrator as the respondent to

a Step-II grievance. If the inmate is dissatisfied with the Step-II response, or does not receive a

timely Step II response, he may appeal to Step III. The Step-III form must be completed within ten

business days after receiving the Step-II response, or if no such response was received, within ten

business days after the date it was due. The Grievance and Appeals Section is the respondent on

behalf of the MDOC director for Step-III grievances. The total grievance process from the filing

of a Step I grievance to the provision of a response at Step III “shall generally be completed within

120 calendar days unless an extension has been approved in writing by the Grievance Coordinator

at Step I and/or Step II.” Id. at ¶ S.

To begin the grievance process, the Step I grievance form (last updated October 1994),

directs a prisoner to “Be brief and concise in describing your grievance issue. If you have any

questions concerning the grievance procedure, refer to PD 03.02.130 and OP 03.02.130 available

in the prison Law Library.” Def.’s Mot. to Dismiss, Ex. D, Prisoner/Parolee Grievance Form Step

I. This is all the instructions state. The form then asks, “What attempt did you make to resolve this

issue prior to writing this grievance? On what date? If none, explain why.” Ibid. For his Step I

grievance, Allen wrote: “9/21, 10/08, 10/27, and 11/15 of 2008 I sent in medical requests about this

issue. Procedure steps are attached to back of grievance.” Ibid. In a separate section, the form

prompts: 

State problem clearly. Use separate grievance form for each issue. Additional

pages, using plain paper, may be used. Four copies of each page and supporting

documents must be submitted with this form. The grievance must be submitted to

the Grievance Counselor in accordance with the time limits of OP 03.02.130.
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Ibid. Allen’s grievance is given in full beneath this prompt:

Prisoner claims he is forced to endure pain and suffering. Prisoner Allen

162043 underwent a successful surgery, 5 of 08, at the Detroit Receiving Hospital.

For extensive swelling at the palm of the left middle finger and left ring finger. A

Consultation Request Report was done from RGC, Dr. Kyle L. Sperling indicating

left hand is with significant deformity, advanced OA or RA involving the 3rd MCP

joint, degenerative changes noted 3rd MCP without a recognizable joint remaining.

A Referral to the proper channels was submitted. Patient is left handed, injury

effects dominant limb, hinders mobility. Patient complaints of constant pain &

swelling that occurs when attempting daily task, which afflicts undue pain, suffrage,

and stress. I have enclosed a copy of each procedural step from all parties contacted.

Initial; RGC, STF, DWH, and Orthopedics Associates Of Michigan, Grand Rapids,

MI. To my understanding, the Doctor’s and Specialist’s are in favor of Corrective

and/or Reconstructive Surgery. In accordance to MDOC Policy Directive 03.04.100,

Paq, QQ —Corrective and Reconstructive Surgery shall be authorized for a prisoner

only if the primary purpose is to restore function. Prisoner appeals to the United

States Constitution Eighth Amendment: in pursuit of relief.

Ibid.

Registered Nurses J. Weippert and S. Teed, as respondent and reviewer, respectively,

returned the Step-I Grievance Response on December 4, 2008, writing: “The grievant alleges being

denied adequate medical care. . . . Grievant has been seen by the Medical Practitioner (MP) and

evaluated by a specialist for advanced arthritis in his left 3rd finger. Surgical consult was submitted

but the Medical Services Advisory Committee (MSAC) denied the request. Grievance denied.”

Def.’s Mot. to Dismiss, Ex. D, Step-I Grievance Response. 

Allen appealed. Under “Reason for Appeal” in the Step-II heading of the Grievance Appeal

Form (last updated December 1997), Allen wrote: “Grievance was not resolved in Step 1 and I’m

still in pain, sitting here with a missing joint in my hand.” Def.’s Mot. to Dismiss, Ex. D,

Prisoner/Parolee Appeal Form at Step II. Prison official Julie Van Setters responded as follows:

The grievant alleges surgery for his left middle finger, left ring finger and left hand

has been denied. . . . The Step I grievance/response and Step II appeal have been

reviewed. A request for surgery was submitted by the medical practitioner (MP).
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Review by the Medical Services Advisory Committee (MSAC) indicates surgery is

not indicated now. The Health Unit Manager (HUM) has been asked to schedule the

grievant with the MP for discussion of his pain. Grievance denied.

Def.’s Mot. to Dismiss, Ex. D, Step II Grievance Response. 

Allen reappealed, stating as his “Reason for Appeal” at Step III: “Being denied adequate

medical care. I’m still in constant pain!” Def.’s Mot. to Dismiss, Ex. D, Prisoner/Parolee Appeal

Form at Step III. The Quality Assurance Office responded on February 5, 2009 as follows:

Grievant alleges he is being denied necessary surgery for his hand.

All information presented upon appeal to Step III has been reviewed, including all

electronic medical records. Grievance has been assessed, evaluated, and treated by

the Medical Practitioner. A process is in place to allow an appeal to all CMS denials,

grievant currently has an appeal in place by the Medical Practitioner and is pending.

Disagreement with the medical judgment of the Medical Practitioner does not

support claims for denial and mistreatment by staff.

Grievance denied.

Def.’s Mot. to Dismiss, Ex. D, Step III Grievance Response.

On April 7, 2009, Allen filed a complaint in this Court against CMS alleging inadequate

medical care. On October 16, 2009, CMS filed a motion to dismiss under 42 U.S.C. § 1997e(a) and

Federal Rule of Civil Procedure 12(b)(6), arguing that Allen failed both to properly exhaust his

administrative remedies and state a claim upon which relief could be granted under the Eighth

Amendment. On December 14, 2009, Magistrate Judge Randon issued a report recommending that

this Court grant CMS’s motion, finding that Allen did not properly exhaust the grievance procedure.

As noted above, Allen filed a timely objection stating four grounds. First, Allen contends

that any procedural default defense against him is waived because his grievance was adjudicated on

the merits. Second, he objects that his specific omission of CMS from his grievances is justified

because MDOC officials failed to update the grievance forms to reflect the newer, exacting policy
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that required him to explicitly name all parties involved in his issue. Third, Allen contends that

CMS had actual or constructive knowledge of his grievance, since the prison’s Step-III response

admits as much. Fourth, he argues that Magistrate Judge Randon impermissibly substituted his own

reasoning for that of the STF officials in reaching his conclusion to dismiss the case.

II.

Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection

requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be

clear enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the

magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are

too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

Of Allen’s four objections, the first one is dispositive. The Prison Litigation Reform Act of

1996 (“PLRA”) 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). This 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, 524 (2002); Booth

v. Churner, 532 U.S. 731, 741 (2001). “Exhaustion” under the PLRA means “proper exhaustion.”

Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion” means “compliance with an

agency’s deadlines and other critical procedural rules . . . .” Id. at 90.
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However, the Supreme Court has held that “failure to exhaust is an affirmative defense under

the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their

complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). This affirmative defense may serve as a

basis for dismissal only if raised and proven by the defendants. Ibid.

Since the Supreme Court decided Jones v. Bock, the Sixth Circuit has stated that 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) (internal quotation marks and citation omitted). 

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, 548 U.S. at 89 (internal

citation and quotation marks omitted).

Although the MDOC’s policy requires a grievance to include specific names, those

requirements are relaxed when the purpose of the grievance has been achieved. “This relaxed

standard is consistent with the general practice of liberally construing pro se prisoners’ filings.”

Bell, 450 F.3d at 654 (quoting Spencer, 449 F.3d at 725). 
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The Sixth Circuit has been quite explicit on this point. See Reed-Bey v. Pramstaller, 603

F.3d 322 (6th Cir. 2010). In Reed-Bey, the defendants challenged on exhaustion grounds the

complaint of a prisoner who “pursued his grievance through all three levels of prison review, yet he

failed to identify the ‘names of all those involved’ in the grievance, as the prison’s grievance

procedures require.” Id. at 323. The court held that “[b]ecause the Michigan Department of

Corrections opted to dismiss his grievance on the merits rather than invoke its procedural bar,

Reed-Bey exhausted his claim. “ Ibid. The court reasoned as follows:

When prison officials decline to enforce their own procedural requirements and opt

to consider otherwise-defaulted claims on the merits, so as a general rule will we. . . .

 Enforcing internal prison rules even when prison officials do not and even when

they proceed to address a grievance on the merits takes Woodford one step too far.

It would do more than ensure that prison officials get the first shot at correcting their

own mistakes; it would give their merits-based grievance denials undeserved

insulation from federal judicial review. 

Id. at 325, 326. 

And so it is here. As Magistrate Judge Randon noted, the “prison staff . . . accepted the

Grievance for filing and resolved the Grievance on the merits.” R&R at 9. STF did not reject

Allen’s grievance as procedurally defaulted under Policy Directive 03.02.130 for lack of specificity

as to those involved. Instead, it responded on the merits at each stage of the grievance process.

Under those circumstances, the procedural bar the defendant seeks to invoke in this Court is

unavailable to it, and the magistrate judge’s recommended dismissal on that basis is fatally flawed.

The Court also finds that the complaint arguably states a claim that the defendant was deliberately

indifferent to the plaintiff’s serious medical needs. Moreover, the defendant’s alternate ground for

its motion is better addressed after discovery has been conducted, perhaps in the context of a
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summary judgment motion. The plaintiff’s objections, therefore, will be sustained, and the

defendant’s motion to dismiss will be denied. 

III.

The plaintiff also filed two amended motions to compel discovery against defendant CMS

after the magistrate judge issued his report recommending dismissal of Allen’s complaint.

Magistrate Judge Randon granted CMS’s motion for a protective order and ordered discovery stayed

pending decision on the dismissal motion. Allen also filed a motion requesting a settlement

conference, in hopes of resolving his complaint against CMS. The magistrate judge denied that

request until the dismissal motions was decided. Allen timely objected to both of these orders. The

plaintiff also has filed several other discovery motions, consisting of a motion to dismiss the

defendant’s motion to compel discovery, a motion to extend time to complete discovery, a motion

for sanctions, a motion to compel answers to interrogatories, and two amended motions to compel

production of documents from the defendant. Those motions have not been adjudicated.

This Court reviews an order by a magistrate judge on a non-dispositive matter to determine

whether the decision is “clearly erroneous or contrary to law.” 28 U.S.C. § 363(b)(1)(A); see also

Fed. R. Civ. P. 72(a) (stating that upon receipt of timely objections, “[t]he district judge to whom

the case is assigned shall consider such objections and shall modify or set aside any portion of the

magistrate judge’s order found to be clearly erroneous or contrary to law”); United States v. Curtis,

237 F.3d 598, 603 (6th Cir. 2001). A decision is “clearly erroneous” when, “although there is

evidence to support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333
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U.S. 364, 395 (1948). Where there are two plausible views, a decision cannot be “clearly

erroneous.” Anderson v. City of Bessemer City, N. Car., 470 U.S. 564, 573 (1985).

The magistrate judge’s orders are not clearly erroneous. It was sensible to stay discovery

and defer ruling on the plaintiff’s discovery motions until the Court ruled on the magistrate judge’s

report recommending dismissal. For the same reason, deferring a settlement conference was a wise

choice as well.

The Court will dismiss the plaintiff’s multiple discovery motions without prejudice, since

discovery has been stayed, and counsel will be appointed for the plaintiff. The Court believes that

with an amended scheduling order to be entered by the magistrate judge, and professional assistance

furnished to the plaintiff, the discovery disputes can be resolved, at least in part, without judicial

intervention.

That leaves the plaintiff’s motion for summary judgment. Since the matter will be referred

back to the magistrate judge, he may address or defer ruling on that motion as he deems appropriate,

perhaps even dismissing the motion and addressing it at the close of the new discovery period.

IV.

The Court finds that the plaintiff’s complaint is not barred by the exhaustion defense. The

magistrate judge’s recommendation for dismissal on that ground, therefore, will be rejected. The

magistrate judge’s interim orders on the plaintiff’s procedural and discovery motions are not clearly

erroneous. The plaintiff’s pending discovery motions will be dismissed. Counsel should be

appointed for the plaintiff.

Accordingly, it is ORDERED that the plaintiff’s objections to the magistrate judge’s report

and recommendation [dkt #60] are SUSTAINED IN PART.
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It is further ORDERED that the report and recommendation [dkt #57] is REJECTED.

It is further ORDERED that the defendant’s motion to dismiss [dkt #22] is DENIED.

It is further ORDERED that the plaintiff’s objections to the magistrate judge’s orders

granting a stay of discovery [dkt #74] and staying request for settlement conference [dkt #75] are

OVERRULED.

It is further ORDERED that the plaintiff’s motions to dismiss the defendant’s motion to

compel discovery [dkt #25], extend time to complete discovery [dkt #43], for sanctions [dkt #44],

to compel answers to interrogatories [dkt #54], and to compel production of documents from the

defendant [dkt #s 61, 67] are DISMISSED WITHOUT PREJUDICE.

It is further ORDERED that the matter is referred to Magistrate Judge Mark A. Randon

under the previous reference order [dkt #3] to ready the matter for trial and to conduct a trial if the

parties consent under 28 U.S.C. § 636(c)(1), and with directions to appoint counsel for the plaintiff

under the Court’s pro bono counsel plan and enter an amended scheduling order.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: July 2, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 2, 2010.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO