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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN McPHERSON,

Plaintiff, CIVIL ACTION NO. 09-11766

v. DISTRICT JUDGE STEPHEN J. MURPHY III

PATRICIA CARUSO, BLAINE MAGISTRATE JUDGE MARK A. RANDON

LAFLER, BARBARA MEAGHER,

JOHN KERNEY, DIANA MARBLE,

JOHN DOE and JANE DOE,

Defendants.

 /

REPORT AND RECOMMENDATION ON

DEFENDANTS’ MOTION TO DISMISS (DKT. NO. 30)

AND MOTION FOR SUMMARY JUDGMENT (DKT. NO. 19)

I. INTRODUCTION

Plaintiff John McPherson (“Plaintiff”), a Michigan prisoner, brought this 42 U.S.C. §

1983 action alleging that multiple defendants were deliberately indifferent to his medical needs

in violation of the Eighth Amendment. Presently before the Court are two dispositive motions:

(1) the motion to dismiss of John Kerney, N.P. (“Kerney”) and Diana Marble, N.P. (“Marble”)

(collectively “the CMS Defendants”) (Dkt. No. 30), and (2) the motion for summary judgment of

Patricia Caruso (“Caruso”), Blaine Lafler (“Lafler”) and Barbara Meager (“Meager”)

(collectively “the MDOC Defendants”) (Dkt. No. 19). The CMS and MDOC Defendants seek

dismissal of Plaintiff’s Complaint on the ground that Plaintiff failed to properly exhaust his

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 The MDOC Defendants also seek dismissal on three other grounds: 1) that they had no

personal involvement in the matters alleged in Plaintiff’s Complaint; 2 ) that there is no genuine

issue of material fact to support Plaintiff’s deliberate indifference claim, and 3) that they are

entitled to qualified immunity. While each these alternative grounds for dismissal have merit,

they need not be addressed, as it is clear that Plaintiff failed to properly exhaust his

administrative remedies. 

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administrative remedies.1 Though ordered to do so, Plaintiff failed to respond to either motion.

(Dkt. Nos. 26, 31) Pursuant to 28 U.S.C. § 636(b)(1)(B), the motions were referred to the

undersigned for a Report and Recommendation. (Dkt. Nos. 7 and 16) Since the undersigned

finds that Plaintiff failed to properly exhausted his administrative remedies, it is

RECOMMENDED that both motions be GRANTED. It is further RECOMMENDED that any

John Doe and Jane Doe defendants be dismissed, requiring dismissal of the entire case if this

Report and Recommendation is accepted. 

II. STATEMENT OF FACTS

A. Background

At all times relevant to this case, Plaintiff has been incarcerated at the Pine River

Correctional Facility (“SPR”) in St. Louis, Michigan, or the Carson City Correctional Facility

(“OTF”) in Carson City, Michigan. Plaintiff alleges he was transferred to SPR on December 22,

2006 with a clean bill of health. (Dkt. No. 1, ¶ 29) According to Plaintiff, in 1997, the EPA

found high levels of the pesticide DDT in the Pine River and began an investigation. (Dkt. No.

1, ¶ 15) Plaintiff alleges that the Pine River is contaminated with para-chlorobenzene sulfonic

acid (p - CBSA) – a byproduct of DDT which was found in the wells of St. Louis City drinking

water at levels up to 11 times greater than the EPA’s safety threshold. (Dkt. No. 1, ¶ 21)

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 H. Pylori is a species of bacteria that causes gastritis and pyloric ulcers and is also

associated with stomach cancer. Dorland’s Illustrated Medical Dictionary 840 (31st ed. 2007).

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 Subsequent stool cultures taken from Plaintiff were negative for H Pylori (Dkt. No. 1, ¶

54), however, Plaintiff claims the stool culture test is not definitive. 

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Plaintiff alleges that the St. Louis prisons (including SPR), which hold about 3000

inmates, were notified of the contamination but did nothing, except place bottled water in the

prison store for those inmates who could afford to purchase it. (Dkt. No. 1, ¶ 28) He further

alleges that SPR’s drinking water, and the water used in food preparation, was tap water derived

from the City of St. Louis. (Dkt. No. 1, ¶ 28)

As a result of his exposure to this “contaminated” water, Plaintiff claims he contracted H.

Pylori.2

 (Dkt. No. 1, ¶ 34) Plaintiff claims that though tested for H. Pylori, he was never advised

of his positive result or treated for the bacteria.3 (Dkt. No. 1, ¶ 35) Therefore, Plaintiff sued

Caruso, the Director for the Michigan Department of Corrections (“MDOC”), for failure to close

SPR after it became known “that the water used at the facility was contaminated with DDT and

other harmful chemicals to human beings”; Lafler (an MDOC Warden) and Meager (an MDOC

Deputy Warden) for failure to provide all prisoners with bottled water; and Kerney and Marble

for failure to inform Plaintiff that he tested positive for H. Pylori and provide adequate medical

treatment. Plaintiff’s lawsuit seeks monetary damages and injunctive relief.

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. 19,

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 While the CMS Defendants’ claim of untimeliness relates to both Plaintiff’s Step I and

Step III Grievance Appeal, the Step I Grievance was answered without raising Plaintiff’s

procedural default (untimeliness). As such, only the claim related to the timeliness of Plaintiff’s

Step III Appeal (which was raised in the Step III response) should be considered. See Vandiver

v. Correctional Medical Services, Inc., 326 Fed. Appx. 885, 2009 WL 1175153 (6th Cir. 2009)

quoting Grear v. Gelabert, No. 07-cv-203, 2008 WL 474098 at * 2, n. 1 (W.D. Mich. Feb. 15,

2008) (“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.”) 

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Ex. E5). 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 particular, as it

relates to filing a Step III grievance,4

 the Policy requires that:

FF. [t]he grievant must send a completed Step III grievance,

using the Prisoner/Parolee Grievance Appeal form (CSJ247B), to the Grievance and Appeals Section within ten

business days after receiving the Step II response. . .

(Emphasis added). 

Further, in outlining what should be included in a grievance, the Policy requires, in part,

that prisoners adhere to the following procedural rules:

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).

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C. Plaintiff’s Grievance

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

Complaint. On November 20, 2007 Plaintiff filed grievance OTF 2007-11-00920-12Z (“the

Grievance”) (Dkt. No. 19, Ex. E2). At Step I, the Grievance read, in its entirety, as follows:

On the above date 11-12-07 I seen P.A. Diana Marble, during my

visit to healthcare, I ask the P.A. could I have a test done for water

contamination because I had just transferred here at OTF (Carson

City) from SPR (Pine River) where the water was, and still is

contaminated. She (P.A.) immediately told me that they don’t do

that here at (OTF), and that there’s nothing wrong with me or the

water at (SPR) I know for a fact that numerous people that last

(SPR) were tested positive for H. Pylory (sp). I was there a[t]

(SPR) for a year, and I’ve been drinking and bathing with that

water for a year, now I’m constantly feeling pain and having dizzy

spells, stomach problems, and it’s hard for me to use the bathroom

(#2). I’m demanding to be tested for H. Pylory (sp) immediately.

The Grievance named only Marble – it did not name, or otherwise describe, any other individual

subsequently named in this lawsuit.

D. January 2008 Calendar and Plaintiff’s Step III Grievance Appeal

After filing a Step II

Appeal, Plaintiff received OTF’s Step

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 The Policy does not contain a procedure for the computation of days. However, the

Federal Rules of Civil Procedure require the first day of the event (i.e., January 16, 2008) be

excluded from the computation period. Fed. R. Civ. P. 6(a)(1). In addition, the common

understanding of “business days” excludes weekends; therefore, 10 business days from January

16, 2008, is January 31, 2008 (January 21, 2008 was the MLK Holiday (see calendar)). 

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II response. The Step II response was returned to the Grievant on January 16, 2008. (Dkt. No.

19, Ex. E2) Therefore, Plaintiff was required (by § FF of the Policy) to send his Step III Appeal

to the MDOC’s Director’s office in Lansing, Michigan by January 31, 2008.5 Plaintiff’s Step III

Appeal was received by the MDOC on February 20, 2008 and was rejected as untimely by the

Bureau of Health Care Services. (Dkt. No. 19, Ex. E2) Plaintiff acknowledges that his Step III

Grievance Appeal was rejected as untimely. (Dkt. No. 1, ¶ 59) 

III. ANALYSIS

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

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 August 20, 2009, the MDOC Defendants filed their motion for summary judgment.

(Dkt. No. 19) The CMS Defendants filed their motion to dismiss on October 20, 2009. (Dkt. No.

30) The next day (August 21 and October 21), the undersigned ordered Plaintiff to file a

response to the motions on or before October 21, 2009, and November 30, 2009, respectively.

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(Dkt. No. 26) To date, however, Plaintiff has not filed a response to either dispositive motion. 

Therefore, the motions 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, both motions are still well-taken in light of the analysis set forth below. 

B. Standard of Review

1. Fed. R. Civ. P. 12(b)(6) and 42 U.S.C. § 1997e(a)

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).

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C. 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). As the Woodford Court explained, the benefits of exhaustion are unattainable if

prisoners ignore the rules:

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.

Woodford, 548 U.S. at 95. Therefore, an untimely or otherwise improper grievance does not

satisfy the PLRA exhaustion requirement. 

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 The Sixth Circuit opinion is attached as Exhibit B to Docket Number 30.

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The sanction for failure to exhaust is best illustrated by the Sixth Circuit’s recent opinion

affirming a district court’s dismissal of a prisoner’s §1983 claim. Sullivan-El v. Pramstaller

(cited by the Sixth Circuit as Sullivan v. Kasajaru), 2007 WL 2701949 (E.D. Mich.), aff’d, 316

Fed.Appx. 469 (6th Cir. 2009).6

 In his grievance, Sullivan-El had complained that “Health

services at NRF” had improperly denied him medication for his blood pressure and urinary

problems. However, his subsequent lawsuit was filed against several individually named

medical personnel. On reconsideration, the district court dismissed the case for failure to

exhaust administrative remedies as to the medical personnel, and Sullivan-El appealed. The

Sixth Circuit held:

The Defendants moved for reconsideration, arguing that when

Sullivan filed his grievance, MDOC policy explicitly required him

to name each person against whom he grieved. See Policy

Directive No. 03.02.130. . . We agree and thus affirm. (Citations

omitted) 

Sullivan-El, 316 Fed.Appx. at *470. The MDOC policy referenced in Sullivan-El was a previous

version of the Policy at issue herein and contains the identical language requiring prisoners to

name each person involved with the grievance. 

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 motions, failure to exhaust may still be raised as an

affirmative defense.

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 These unnamed defendants could also be dismissed because of Plaintiff’s failure to

exhaust his administrative remedies. 

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2. Plaintiff Failed to Properly Exhaust his Administrative Remedies

 

Plaintiff failed to properly exhaust the Grievance in two ways. First, Plaintiff’s Step III

Appeal was untimely. The MDOC clearly notified Plaintiff of the procedural default by

rejecting the appeal as untimely. (Dkt. No. 19, Ex. E2) Therefore, Plaintiff’s “§1983 claim

based on the grievance. . .[is] subject to dismissal for failure to properly exhaust.” Vandiver v.

Correctional Medical Services, Inc., 326 Fed.Appx. 885, 2009 WL 1175153 (6th Cir. 2009)

quoting Grear v. Gelabert, No. 07-cv-203, 2008 WL 474098 at * 2, n. 1 (W.D. Mich. Feb. 15,

2008). Second, the Grievance named only Marble, and thus, did not properly exhaust his

administrative remedies against Defendants Kerney, Caruso, Lafler or Meager. Sullivan-El, 316

Fed.Appx. at *470. Accordingly, Plaintiff’s claims should be dismissed for failure to properly

exhaust his administrative remedies.

D. The Unserved and Unnamed Defendants Should be Dismissed

Finally, as to the remaining John Doe and Jane Doe defendants, it is recommended that

they be dismissed without prejudice.7

 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 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

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this case has been pending for over 120 days (since May 27, 2009); thus, it is recommended 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 and Recommendation will serve as notice to Plaintiff under Rule 4(m). 

IV. RECOMMENDATION

For the reasons stated above, it is RECOMMENDED that the motion to dismiss filed by

the CMS Defendants (Dkt. No. 30) and the motion for summary judgment filed by the MDOC

Defendants (Dkt. No. 19) be GRANTED. It is further RECOMMENDED that the John Doe and

Jane Doe defendants be dismissed, requiring dismissal of the entire case if this Report and

Recommendation is accepted. 

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. 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.

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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: January 15, 2010

Certificate of Service

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

date, January 15, 2010, by electronic and/or ordinary mail.

S/Barbara M. Radke 

Judicial Assistant

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