Collier #242207 v. Nigorni et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ISAAC COLLIER, JR. #242207, 	Case No. 1:25-cv-80
Plaintiff, 	Hon. Robert J. Jonker
U.S. District Judge
v.
UNKNOWN NIGORNI, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendant’s motion for
summary judgment due to Plaintiff’s failure to exhaust his administrative remedies.
ECF No. 26.
Plaintiff – state prisoner Isaac Collier, Jr. – filed a civil complaint under 42
U.S.C. 	§ 1983 	alleging 	that 	Defendants 	violated 	his 	rights 	under 	the 	Eighth
Amendment while he was a prisoner at the Carson City Correctional Facility (DRF).
ECF No. 1. Plaintiff named five defendants in his Complaint. Following screening,
only two Defendants remained – Nurse Unknown Nigorny and Dr. Unknown Wuest.
ECF No. 5, PageID.64. 	This Court subsequently dismissed Nurse Nigorny due to
Plaintiff’s failure to exhaust administrative remedies. ECF No. 23 (Order Adopting
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Report and Recommendation). 	At this point in the case, Dr. Wuest is the only
remaining Defendant. 1
Plaintiff alleges that he hurt his leg during an altercation on February 8, 2023.
ECF No.1, PageID.3. 	He says that he called Dr. Wuest on February 9, 2023, to
examine the leg causing him pain. 	Id. 	Plaintiff asserts that Dr. Wuest jabbed his
leg, berated him, and refused to perform an x-ray. Id. Plaintiff claims Dr. Wuest was
deliberately indifferent to his medical concerns in violation of his Eighth Amendment
rights.
Defendant Dr. Wuest asserts that Plaintiff’s remaining claim should be
dismissed because Plaintiff filed his Step I grievance nearly five months past the due
date. 	ECF No. 27, PageID.327. 	In response, Plaintiff argues that the factual
allegations of his case are intertwined with the issue of exhaustion. 	ECF No. 31,
PageID.344. 	In reply, Defendant asserts that Plaintiff’s claims are unverified and
this Court previously rejected Plaintiff’s argument in Defendant Nigorny’s motion for
summary judgment. ECF No. 36, PageID.407.
The undersigned respectfully recommends that the Court grant Defendant’s
motion for summary judgment. 	The records before the Court establish that no
genuine issue of material fact remains with respect to the issue of Plaintiff’s
exhaustion of his administrative remedies.
1 	It should be noted that Nurse Nigorni was represented by an Assistant
Attorney General who chose to file a summary judgment motion based on exhaustion
very early in the progression of this case. 	This R. & R. references some of the
documents filed with that earlier motion.
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II. Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether
summary judgment is appropriate is “whether the evidence presents a sufficient
disagreement to require submission to a jury[2] or whether it is so one-sided that one
party must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421
F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in favor of the party opposing
the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
III. Exhaustion of Administrative Remedies
A prisoner’s failure to exhaust his administrative remedies is an affirmative
defense, which Defendants have the burden to plead and prove. 	Jones v. Bock, 549
U.S. 199, 212-16 (2007). “[W]here the moving party has the burden -- the plaintiff on
2 	The Seventh Amendment does not always require courts to submit factual
disputes about exhaustion to a jury. 	Lee v. Willey, 789 F.3d 673, 678 (6th Cir.
2015). However, when the exhaustion issue is intertwined with the merits of a claim,
the Seventh Amendment requires a jury trial on the exhaustion issue. 	Perttu v.
Richards, 605 U.S. 460, 479, 145 S.Ct. 1793, 1807 (2025).
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a claim for relief or the defendant on an affirmative defense -- his showing must be
sufficient for the court to hold that no reasonable trier of fact could find other than
for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986).
The Sixth Circuit has repeatedly emphasized that the party with the burden of proof
“must show the record contains evidence satisfying the burden of persuasion and that
the evidence is so powerful that no reasonable jury would be free to disbelieve it.”
Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). Accordingly,
summary 	judgment 	in 	favor 	of 	the 	party 	with 	the 	burden 	of 	persuasion 	“is
inappropriate 	when 	the 	evidence 	is 	susceptible 	of 	different 	interpretations 	or
inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
Pursuant to the applicable portion of the Prison Litigation Reform Act (PLRA),
42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions
under 42 U.S.C. § 1983 must exhaust his available administrative remedies. Porter
v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). 	A
prisoner must first exhaust available administrative remedies, even if the prisoner
may not be able to obtain the specific type of relief he seeks in the state administrative
process. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215
F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).
In order to properly exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable
procedural rules. 	Jones, 549 U.S. at 218-19; Woodford v. Ngo, 548 U.S. 81, 90-91
(2006). 	“Compliance with prison grievance procedures, therefore, is all that is
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required by the PLRA to ‘properly exhaust.’” 	Jones, 549 U.S. at 218-19. 	In rare
circumstances, the grievance process will be considered unavailable where officers
are 	unable 	or 	consistently 	unwilling 	to 	provide 	relief, 	where 	the 	exhaustion
procedures may provide relief, but no ordinary prisoner can navigate it, or “where
prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” 	Ross v. Blake, 578 U.S.
632, 644 (2016).
“Beyond doubt, Congress enacted [Section] 1997e(a) to reduce the quantity and
improve the quality of prisoner suits.” Porter, 534 U.S. at 524. In the Court’s view,
this objective was achieved in three ways. 	First, the exhaustion requirement
“afforded corrections officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” 	Id. at 525. 	Second, “the internal
review might ‘filter out some frivolous claims.’” Id. (quoting Booth, 532 U.S. at
737). And third, “adjudication could be facilitated by an administrative record that
clarifies the contours of the controversy.” Id. When institutions provide adequate
notice as required under the PLRA, the opportunity to address the claims internally
furthers 	the 	additional 	goals 	of 	limiting 	judicial 	interference 	with 	prison
administration. Baker v. Vanderark, 1:07-cv-004, 2007 WL 3244075, *5 (W.D. Mich.,
Nov. 1, 2007).
Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective
September 25, 2023) sets forth the applicable grievance procedures for prisoners in
MDOC custody at the time relevant to this complaint. Inmates must first attempt to
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informally resolve a grievable issue within two business days of becoming aware of
the issue, unless prevented by circumstances beyond his or her control. 	Id. at ¶ W.
If informal 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 informal resolution. 	Id. at ¶¶ W, CC. 	The inmate submits the
grievance to a designated Grievance Coordinator, who assigns it to a respondent. Id.
at ¶ CC. 	The Policy Directive also provides the following directions for completing
grievance forms: “The issues should 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 ¶ Y (emphasis in original).
Where the grievance procedures are not available because the issue presented
is non-grievable, exhaustion of prison grievance procedures is not required. It is well-
established that a prisoner “cannot be required to exhaust administrative remedies
regarding non-grievable issues.” Figel v. Bouchard, 89 F. App’x 970, 971 (6th Cir.
2004); Mays v. Kentucky Dept. of Corrections, 2018 WL 4603153, at *3 (W.D. Ky. Sept.
25, 2018) (“It is beyond debate that an inmate cannot be required to exhaust
administrative remedies regarding non-grievable issues.”); Reeves v. Hobbs, 2013 WL
5462147 (W.D. Ark. Sept. 3, 2013) (“Defendants cannot treat a complaint as non-
grievable, and therefore not subject to the grievance procedure, and then turn around
and maintain the claim fails because [the plaintiff] failed to follow the grievance
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procedure. As the well known proverb states, they cannot have their cake and eat it
too.”).
However, where other administrative remedies are available, the prisoner is
required to exhaust those available remedies prior to filing a federal lawsuit. For
example, where an inmate claims that he received a retaliatory false misconduct,
whether a Class I misconduct or a Class II or III misconduct3 , the inmate must first
raise the issue during the Misconduct Hearing. 	Siggers v. Campbell, 652 F.3d 681,
693−94. If the inmate is claiming to have received a retaliatory Class I misconduct,
he or she must then must “file a motion or application for rehearing [of his misconduct
conviction] in order to exhaust his or her administrative remedies before seeking
judicial review of the final decision or order.” Mich. Comp. Laws § 791.255(1); see also
Siggers, 652 F.3d at 693−94.
When prison officials waive enforcement of these procedural rules and instead
consider a non-exhausted claim on its merits, a prisoner’s failure to comply with those
rules 	will 	not 	bar 	that 	prisoner’s 	subsequent 	federal 	lawsuit. 	Reed-Bey 	v.
Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). 	The Sixth Circuit has explained:
[A] 	prisoner 	ordinarily 	does 	not 	comply 	with 	MDOCPD 	130—and
therefore does not exhaust his administrative remedies under the
PLRA—when he does not specify the names of each person from whom
3 	Violations of written rules within the MDOC are classified as either Class I,
Class II or Class III misconducts. Class I consists of the most severe violations, and
Class III consists of the least severe. 	While Class I misconducts are considered
“major” misconducts and are “subject to all hearing requirements set forth in MCL
791.252”, Class II and III misconducts are considered “minor” misconducts and are
“subject to all requirements currently set forth in Department Administrative Rules
and policy directives for ‘minor’ misconducts.” MDOC Policy Directive (PD) 03.03.103
¶ B (eff. date 07/01/18).
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he seeks relief. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324-25 (6th
Cir. 2010) (“Requiring inmates to exhaust prison remedies in the
manner 	the 	State 	provides—by, 	say, 	identifying 	all 	relevant
defendants—not 	only 	furthers 	[the 	PLRA’s] 	objectives, 	but 	it 	also
prevents 	inmates 	from 	undermining 	these 	goals 	by 	intentionally
defaulting their claims at each step of the grievance process, prompting
unnecessary and wasteful federal litigation process.”). 	An exception to
this rule is that prison officials waive any procedural irregularities in a
grievance when they nonetheless address the grievance on the merits.
See id. at 325. 	We have also explained that the purpose of the PLRA’s
exhaustion requirement “is to allow prison officials ‘a fair opportunity’
to address grievances on the merits to correct prison errors that can and
should be corrected to create an administrative record for those disputes
that eventually end up in court.” Id. at 324.
Mattox v. Edelman, 851 F.3d 583, 590−91 (6th Cir. 2017).4
IV. Verification
In ruling on a summary judgment motion, a court must decide whether a
genuine issue of material fact remains. Fed. R. Civ. P. 56(a). The materials a court
may consider in making this assessment are identified in Fed. R. Civ. P. 56(c).
Courts, however, allow a plaintiff to rely on a “verified complaint,” which has “‘the
same force and effect as an affidavit’ for purposes of responding to a motion for
summary judgment.” Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (quoting
Williams v. Browman, 981 F.2d 901, 905 (6th Cir.1992)). 	To qualify as “verified,” a
complaint must be executed in a manner that meets the requirements set forth in 28
U.S.C. § 1746. 	Id. 	In contrast, complaints that are unverified are not considered
4 	In Mattox, the Sixth Circuit held that a prisoner may only exhaust a claim
“where he notifies the relevant prison . . . staff” regarding the specific factual claim
“giving the prison staff a fair chance to remedy a prisoner’s complaints.” 	Id. at 596.
For example, grieving a doctor about his failure to give cardiac catheterization did
not grieve the claim that the doctor erred by not prescribing Ranexa.
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Rule 56 evidence. 	Cooper v. Parker, No. 2:17-CV-00155, 2019 WL 5273967, at *2
(W.D. Mich. Aug. 29, 2019) (citations omitted), report and recommendation adopted,
No. 2:17-CV-155, 2019 WL 4686423 (W.D. Mich. Sept. 26, 2019).
The undersigned recognizes that pro se plaintiffs, like Collier, are held to a less
stringent pleading standard than parties represented by an attorney. 	Grinter v.
Knight, 532 F.3d 567, 577 (6th Cir. 2008). 	At the summary judgment stage, pro se
plaintiffs are thus not held to the same technical requirements as represented
parties. Still, pro se plaintiffs must use common sense in demonstrating there exists
a genuine issue of material fact. 	A review of the record indicates that Collier’s
complaint and response lack declarations of veracity as called for in 28 U.S.C. § 1746.
ECF No. 1; ECF No. 21. As such, neither his complaint nor his response constitutes
evidence for Rule 56(c) purposes.
V. Grievance Identified by Defendant
In Nurse Nigorny’s earlier motion for summary judgment, ECF No. 20 (filed
June 23, 2025), she identified the following Step I grievance – identified as DRF 23-
07-1747-28E (hereinafter “DRF-1747”):
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ECF No. 20-3, PageID.285. The grievance response shown above indicates that DRF-
1747 was rejected as untimely.
Additionally, Collier’s Step III Grievance Report is shown below:
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Id., PageID.281. This report confirms that DRF-1747 was rejected.
VI. Analysis
Dr. Wuest’s present motion relies heavily on this Court’s previous analysis of
Nurse Nigorny’s motion for summary judgment based on exhaustion. 	There, the
undersigned considered the same grievance identified in Dr. Wuest’s motion and
concluded that DRF-1747 was untimely and that Plaintiff’s unverified allegations of
thwarting failed to create a genuine issue of material fact. ECF No. 22, PageID. 311;
ECF No. 23 (Order adopting R. & R.).
Here, the analysis is largely the same. 	At Step I of DRF-1747, Collier stated
the date of the incident was February 8, 2023. 	ECF No. 20-3, PageID.285. 	Yet, as
shown above, Collier indicated that he wrote the grievance on July 2, 2023. Id.
“[P]roper 	exhaustion” 	requires 	that 	the 	plaintiff 	comply 	with 	the
administrative agency’s deadlines and “critical procedural rules,” such as time limits
for filing grievances. Woodford, 548 U.S. at 90−95. MDOC policy provides that a
grievance shall be rejected if filed in an untimely manner. PD 03.02.130 ¶ (J)(5).
Grievances are considered filed on the date they are received by the Department and
must be stamped as such. Id., ¶ T. When filing a Step I grievance, inmates must
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attempt to resolve the issue with the relevant staff member within two business days
of the relevant events. Id., ¶ Q. To be considered timely, a Step I grievance must be
filed within five business days of their attempt to resolve the issue with staff. Id.,
¶ 	W 	(emphasis 	added). 	Step 	II 	appeals 	must 	be 	received 	by 	the 	Grievance
Coordinator within ten business days after the grievant received a Step I response
or, if no response is received, within ten business days after the date the response
was due. Id., ¶ EE.
In DRF-1747, Collier filed his Step I grievance almost five months after the
relevant events he alleges occurred. 	ECF No. 20-3, PageID.287. 	Subsequently, the
Respondent rejected DRF-1747 at Step I for being untimely and upheld that rejection
through Step III. Id., PageID.282.
In response to the present motion, Collier argues that the issue of exhaustion
is intertwined with the facts of the case. ECF No. 31, PageID.344. The United States
Supreme Court recently held that “parties have a right to a jury trial on PLRA
exhaustion when that issue is intertwined with the merits of a claim that falls under
the Seventh Amendment.” 	Perttu v. Richards, 605 U.S. 460, 468 (2025). 	In Perttu,
an inmate alleged that a prison employee violated his First Amendment rights when
the employee destroyed grievance documents and retaliated against the inmate for
attempting to file the documents. Id. at 464.
Unlike in Perttu, Collier’s factual allegations are not intertwined with the issue
of exhaustion. Collier asserts that Dr. Wuest was deliberately different to his medical
needs. He does not allege that Dr. Wuest hindered his ability to file a grievance. In
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his response, Collier argues that the facts are intertwined because “someone refused
to file his grievance after [he] had written them and given them to the staff while in
the segregation unit.” 	ECF No. 32, PageID.350. 	Collier does not identify a
throughline between his factual allegations concerning Dr. Wuest and these apparent
thwarting assertions. 	Furthermore, none of Collier’s thwarting assertions are
verified. 	Thus, in the opinion of the undersigned, the factual allegations are not
intertwined.
In the opinion of the undersigned, Collier has failed to properly exhaust his
administrative remedies regarding his claim against Dr. Wuest. Collier filed DRF-
1747 nearly five months late and the grievance was rejected at Step I as untimely.
That objection was upheld through Step III. Additionally, Collier has not established
that the factual allegations of his unverified Complaint are intertwined with the issue
of exhaustion. Accordingly, Collier has failed to establish a genuine issue of material
facts regarding exhaustion of his administrative remedies.
VIII. Recommendation
The undersigned respectfully recommends that the Court grant Defendant Dr.
Wuest’s motion for summary judgment. 	The records before the Cour establish that
no genuine issue of material fact remains with respect to the issue of Plaintiff’s
exhaustion of his administrative remedies.
The undersigned respectfully recommends that this Court dismiss Plaintiff’s
Eighth Amendment deliberate indifference claim against Dr. Wuest. 	If the Court
accepts this recommendation, no claims will remain in this case.
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Dated: 	March 20, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
NOTICE TO PARTIES:
Objections to this Report and Recommendation must be served on opposing
parties and filed with the Clerk of the Court within fourteen (14) days of receipt of
this Report and Recommendation. 	28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b);
W.D. Mich. LCivR 72.3(b). 	Failure to file timely objections constitutes a waiver of
any further right to appeal. 	United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
See also Thomas v. Arn, 474 U.S. 140 (1985).
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