Smith #619752 v. Brown et al

1:25-cv-00379Miwd27.10.2025

Gesamter Gesetzestext

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ASHTON SMITH, #619752,
Plaintiff, 	Hon. Jane M. Beckering
v. 	Case No. 1:25-cv-379
DALE BONN, et al.,
Defendants.
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REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ Motion for Summary Judgment.
(ECF No. 21). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that
Defendants’ motion be granted in part and denied in part as discussed herein.
BACKGROUND
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Macomb Correctional Facility (MRF). The events about which he
complains, however, occurred at the Ionia Correctional Facility (ICF). Plaintiff sues the
following ICF staff in their individual and official capacities: Warden Dale Bonn,1 Law
Librarian Unknown Novak, Librarian Tech Unknown Zupon, and Sergeant Unknown
Kerr. (Compl., ECF No. 1, PageID.2–3.)
1 Plaintiff refers to this Defendant throughout his complaint as both Dale Brown and
Dale Bonn. Subsequent pleadings indicate that this Defendant’s name is Dale Bonn.
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Plaintiff alleges that, on May 21, 2024, Plaintiff was in the ICF library when he
completed a photocopy disbursement form and submitted it with the motion to be copied
to Defendant Zupon. (Id., PageID.5.) Defendant Zupon denied Plaintiff’s request for
copies because Plaintiff did not have sufficient funds in his account and told Plaintiff to
copy the motion by hand. (Id.) Plaintiff then told Defendant Zupon that he could not
afford copies and could not copy the motion by hand due to a “very painful hand and
wrist condition.” (Id.) Nonetheless, Defendant Zupon refused to make copies. (Id.)
Plaintiff then told Defendant Zupon that Plaintiff would be filing a grievance.
(Id.) Hearing that, Defendant Novak interjected, saying, “Who do you think you are
demanding copies and threatening to grieve Zupon! You haven’t shown any necessity
for five copies today. Show me the Court rule again!!!” (Id., PageID.6.) Plaintiff
showed Defendant Novak the Federal Rule of Civil Procedure, but again Defendant
Novak denied Plaintiff’s request for copies. (Id.) Plaintiff stated that he would be
filing a grievance on Defendant Novak as well. (Id.)
Defendant Novak responded by getting his face “about 7 inches” from Plaintiff’s
face and yelling, “‘Shut-up!’, ‘Shut-up!!!’ I’m sick of your grievance talk, you stupid
prisoner, you are nothing, trash! I will show you what I can do to stupid blind people
like you who comes in here and threatens me.” (Id., PageID.6–7.) Defendant Novak
ordered non-party Corrections Officer Gregory to take Plaintiff to segregation for
threatening behavior and to “lace [Plaintiff’s] a** up and be creative with it.” (Id.,
PageID.7.) Officer Gregory refused, telling Defendant Novak that he would not lie
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about the interaction between Plaintiff and Defendant Novak. (Id.) Defendant Novak
then told Plaintiff that he would find someone to “lie on [Plaintiff],” calling Plaintiff a
“blind piece of sh*t, and ordered Officer Gregory to remove Plaintiff from the library.
(Id.)
On June 16, 2024, Plaintiff was again in the ICF library and submitted a
completed legal photocopy form and pleadings to Defendant Zupon. (Id., PageID.8.)
Defendant Zupon stated, “I usually do not bite but since you bit me first, I have to bite
you back.” (Id., PageID.9.) Defendant Zupon then refused to make copes and
confiscated Plaintiff’s pleadings, telling Plaintiff that Plaintiff would need to re-write
them by hand. (Id.) Defendant Zupon demanded that Plaintiff leave the library or be
“cuffed-up and dragged to seg.” (Id.) When Plaintiff requested his “walking aid” to
escort him because he cannot see, Defendant Zupon ordered Plaintiff to leave the library
and refused to call Plaintiff’s walking aid, stating, “I don’t care that you can’t see, I am
not waiting on your walking aid, if Sgt. Kerr arrives before your walking-aid, you are
going to be dragged to seg!.” (ECF No. 1, PageID.9.)
“[M]oments later,” Defendant Kerr arrived and told Plaintiff that Plaintiff’s legal
papers were being confiscated because they were considered “forgery” and “altered”
because Plaintiff had used the sticky part of the envelope as correction tape to cover his
errors, which Plaintiff alleges is not prohibited by MDOC policy. (Id., PageID.9–10, 11.)
Defendant Kerr told Plaintiff, “Either leave now, or leave in cuffs.” (Id., PageID.10.)
When Plaintiff again requested his walking aid, Defendant Kerr stated, “If I walk you
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any where you are going to seg. Don’t make me call me guys or you’ll get your a** kicked
now and you’ll end up in seg beaten up, you been warned.” (Id., PageID.10.)
Defendant Kerr also said, “You like writing grievances, this ought to be a good one.”
(Id.) Defendant Kerr refused to call Plaintiff’s walking aid and instead ordered Plaintiff
to cuff up. (Id.) Plaintiff complied and was taken to administrative segregation. (Id.)
Plaintiff alleges that Defendant Zupon retained Plaintiff’s confiscated papers,
consisting of a discovery request in Smith v. Haiderer, Case No. 2:23-cv-11509, for 15
days. (Id., PageID.11.) On July 2, 2024, non-party Sergeant Swanson conducted a
hearing regarding the purportedly altered legal papers confiscated by Defendant Zupon.
(Id., PageID.12.) Defendant Swanson returned Plaintiff’s legal papers to him. (Id.)
On July 9, 2024, Plaintiff submitted a photocopy form and discovery requests for
Smith v. Unknown Williams, Case No. 1:23-cv-637, to Defendant Zupon via non-party
Prisoner Counselor Hengesbach. (Id.) Defendant Zupon again confiscated Plaintiff’s
discovery request because Plaintiff had used the sticky part of the envelope as correction
tape to paste over words. (Id.) On July 15, 2024, Prisoner Counselor Hengesbach told
Plaintiff, “That Defendant [Bonn] was tired of hearing about you grieving sh*t and he
told them to take your sh*t and throw it away.” (Id., PageID.13.) Defendants did not
return Plaintiff’s discovery requests. (Id., PageID.14.)
Plaintiff claims that Defendants Novak, Zupon, Kerr, and Bonn retaliated against
Plaintiff in violation of Plaintiff’s First Amendment rights; Defendants Novak, Zupon,
and Kerr demonstrated deliberate indifference to Plaintiff’s medical condition in
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violation of Plaintiff’s Eighth Amendment rights; and Defendants Novak and Zupon
confiscated Plaintiff’s legal papers, interfering with Plaintiff’s access to the Courts, in
violation of Plaintiff’s “First and Fourth” Amendment rights. (Id., PageID.15.)
Plaintiff also brings claims for violation of 42 U.S.C. § 1985 and the Americans with
Disabilities Act (ADA). (Id., PageID.1.) Plaintiff seeks declaratory and monetary
relief. (Id.) Upon screening, the Honorable Jane M. Beckering concluded as follows:
the following claims will be dismissed for failure to state a claim, under 28
U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c): § 1983 official
capacity claims, First Amendment claims for interference with Plaintiff’s
access to the courts, Fourth Amendment claims, Eighth Amendment claims
concerning verbal harassment and threats and the denial of copies,
Fourteenth Amendment claims, § 1983 claims for violations of MDOC policy
and work rules, § 1983 conspiracy claims, claims for violation of § 1985, and
ADA claims against Defendants Zupon and Kerr in their individual
capacities. Plaintiff’s First Amendment retaliation claims, Eighth
Amendment claims against Defendants Zupon and Kerr for the denial of
Plaintiff’s walking aid, and ADA claims against Defendants Zupon and
Kerr in their official capacities remain in the case.
(ECF No. 8, PageID.89).
Defendants Bonn, Zupon, and Kerr now move for summary judgment on the
ground that Plaintiff has failed to properly exhaust his administrative remedies.
Plaintiff has responded to Defendants’ motion.2 The Court finds that oral argument is
unnecessary. See W.D. Mich. LCivR 7.2(d).
2 Service has not yet been accomplished on Defendant Novak. There is an unofficial
suggestion in the record that Defendant Novak passed away earlier this year, (ECF
No. 18), however, Defendants have not filed a Suggestion of Death or otherwise formally
informed the Court whether such is the case.
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SUMMARY JUDGMENT STANDARD
Summary judgment “shall” be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Whether a fact is “material” depends on “whether
its resolution might affect the outcome of the case.” Harden v. Hillman, 993 F.3d 465,
474 (6th Cir. 2021).
A party moving for summary judgment can satisfy its burden by demonstrating
that the non-moving party, “having had sufficient opportunity for discovery, has no
evidence to support an essential element of his or her case.” Minadeo v. ICI Paints, 398
F.3d 751, 761 (6th Cir. 2005). Once the moving party makes this showing, the non-
moving party “must identify specific facts that can be established by admissible evidence,
which demonstrate a genuine issue for trial.” Amini v. Oberlin College, 440 F.3d 350,
357 (6th Cir. 2006). The existence of a mere “scintilla of evidence” in support of the non-
moving party’s position, however, is insufficient. Daniels v. Woodside, 396 F.3d 730,
734-35 (6th Cir. 2005).
While the Court must view the evidence in the light most favorable to the non-
moving party, that party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Amini, 440 F.3d at 357. The non-moving
party “may not rest upon [his] mere allegations,” but must instead present “significant
probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon
Corp., 434 F.3d 810, 813-14 (6th Cir. 2006). Likewise, the non-moving party cannot
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merely “recite the incantation, ‘credibility,’ and have a trial on the hope that a jury may
disbelieve factually uncontested proof.” Fogerty v. MGM Group Holdings Corp., Inc.,
379 F.3d 348, 353-54 (6th Cir. 2004).
Accordingly, summary judgment is appropriate “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Daniels, 396 F.3d
at 735. Stated differently, the “ultimate question is whether the evidence presents a
sufficient factual disagreement to require submission of the case to the jury, or whether
the evidence is so one-sided that the moving parties should prevail as a matter of law.”
Harden, 993 F.3d at 474.
While a moving party without the burden of proof need only show that the
opponent cannot sustain his burden at trial, a moving party with the burden of proof
faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002).
Where the moving party has the burden, “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). Accordingly, summary
judgment in favor of the party with the burden of proof “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).
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ANALYSIS
I. 	Exhaustion Standard
Pursuant to 42 U.S.C. § 1997e(a), a prisoner asserting an action regarding prison
conditions under 42 U.S.C. § 1983 must first exhaust his administrative remedies. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). This obligation only extends, however, to
such administrative remedies as are available. Ross v. Blake, 578 U.S. 632, 642 (2016)
(a prisoner “must exhaust available remedies, but need not exhaust unavailable ones”).
Prisoners are no longer required to demonstrate exhaustion in their complaints.
See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, failure to exhaust administrative
remedies is “an affirmative defense under the PLRA” which the defendant bears the
burden of establishing. Ibid.
With respect to what constitutes proper exhaustion, the Supreme Court has stated
that “the PLRA exhaustion requirement requires proper exhaustion” defined as
“compliance with an agency’s deadlines and other critical procedural rules.” Woodford
v. Ngo, 548 U.S. 81, 90-93 (2006). In Bock, the Court reiterated that
Compliance with prison grievance procedures, therefore, is all that is
required by the PLRA to ‘properly exhaust.’ The level of detail necessary
in a grievance to comply with the grievance procedures will vary from
system to system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper exhaustion.
Bock, 549 U.S. at 218.
MDOC Policy Directive 03.02.130 articulates the applicable grievance procedures
for prisoners in MDOC custody. Prior to submitting a grievance, a prisoner must
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attempt to resolve the issue with staff, unless prevented by circumstances beyond his
control, or the issue falls within the jurisdiction of Internal Affairs. MDOC Policy
Directive 03.02.130 ¶ W (Sept. 25, 2023). The prisoner must attempt to resolve the
matter within two days of becoming aware that there exists a grievable issue. (Id.).
If this attempt is unsuccessful (or such is inapplicable), the prisoner may submit
a Step I grievance, but such must be submitted within five business days after
attempting to resolve the matter with staff. MDOC Policy Directive 03.02.130 ¶ CC
(Sept. 25, 2023). The issues asserted in a grievance “should be stated briefly but
concisely” and the “[d]ates, times, places, and names of all those involved in the issue
being grieved are to be included.” MDOC Policy Directive 03.02.130 ¶ Y (Sept. 25,
2023).
If the prisoner is dissatisfied with the Step I response, or does not receive a timely
response, he may appeal to Step II within ten business days of the response, or if no
response was received, within ten business days after the response was due. MDOC
Policy Directive 03.02.130 ¶ JJ (Sept. 25, 2023). If the prisoner is dissatisfied with the
Step II response, or does not receive a timely Step II response, he may appeal the matter
to Step III. MDOC Policy Directive 03.02.130 ¶ NN (Sept. 25, 2023).
II. 	Remaining Claims
At the outset, it is necessary to precisely identify Plaintiff’s remaining claims as
such will be relevant to the analysis below. Plaintiff has asserted several retaliation
claims all of which remain: (1) on May 21, 2024, Defendant Novak threatened to falsely
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charge Plaintiff with a misconduct violation in retaliation for Plaintiff’s threat to file a
grievance; (2) on June 16, 2024, Defendant Zupon confiscated Plaintiff’s legal pleadings
in retaliation for filing grievances; (3) on June 16, 2024, Defendant Kerr threatened to
place Plaintiff in administrative segregation in retaliation for Plaintiff’s refusal to return
to his cell without assistance from his assigned “walking-aid”3; (4) on an unknown date
between July 9, 2024, and July 12, 2024, Defendant Zupon, at Defendant Bonn’s
direction, confiscated Plaintiff’s legal pleadings in retaliation for filing grievances.
Plaintiff also asserts that Defendants Zupon and Kerr violated his rights under the ADA
and Eighth Amendment by refusing to contact Plaintiff’s “walking aid” and instead
forcing him to return to his cell without assistance.
III. Evidence
Defendants and Plaintiff have both presented evidence in support of their
respective positions. This evidence reveals the following.
A. 	Grievance ICF-24-05-0619-07f
In this grievance, Plaintiff alleged that Defendants Novak and Zupon violated his
right of access to the courts. (ECF No. 22-3, PageID.187-94). Plaintiff’s denial of
access to the courts claims were dismissed on screening, however. (ECF No. 8).
Accordingly, this grievance fails to properly exhaust any of Plaintiff’s remaining claims
against Defendants Bonn, Zupon, or Kerr.
3 Plaintiff alleges that, due to a visual impairment, he has been assigned a “Walking-
Aid” to assist him with all “out-[of]-cell movement.” (ECF No. 1, PageID.10).
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B. 	Grievance ICF-24-05-0598-17b
In this grievance, Plaintiff alleged that Defendants Novak and Zupon retaliated
against him on May 21, 2024. Specifically, Plaintiff alleged that Novak and Zupon
threatened to falsely charge him with a misconduct violation in retaliation for Plaintiff’s
threat to file a grievance against them. (ECF No. 22-3, PageID.200-01). Plaintiff
pursued this grievance through all three steps of the grievance process. (ECF No. 22-
3, PageID.195-206). In his complaint, however, the only person against whom Plaintiff
asserts a claim of retaliation arising from the May 21, 2024 incident is Defendant Novak.
(ECF No. 1, PageID.5-8). Accordingly, this grievance fails to properly exhaust any of
Plaintiff’s remaining claims against Defendants Bonn, Zupon, or Kerr.
C. 	Grievance ICF-24-05-0516-12d4
This grievance was not asserted against Defendants Bonn, Zupon, or Kerr and,
moreover, does not concern any of Plaintiff’s remaining claims against these Defendants.
(ECF No. 22-3, PageID.207-16). Accordingly, this grievance fails to properly exhaust
any of Plaintiff’s remaining claims against Defendants Bonn, Zupon, or Kerr.
D. 	Grievance ICF-24-07-0810-17b
In this grievance, Plaintiff alleges that on an unknown date between July 9, 2024,
and July 12, 2024, Defendant Zupon, at Defendant Bonn’s direction, confiscated his legal
documents in retaliation for a grievance Plaintiff filed. (ECF No. 27-7, PageID.301).
There is no dispute that Plaintiff filed this grievance at Step I. Likewise, there is no
dispute that when pursuing this grievance Plaintiff was on modified grievance access.
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When on modified access, a prisoner cannot file grievances unless prison officials provide
the prisoner with the necessary grievance forms. See MDOC Policy Directive 03.02.130
¶¶ PP-TT (eff. Sept. 25, 2023).
The parties dispute, however, whether Plaintiff pursued the matter beyond Step I.
Defendants have presented evidence that Plaintiff requested a Step II grievance appeal
form, filed a Step II appeal, but failed to pursue the matter further. (ECF No. 28-1,
PageID.334-35). Plaintiff, on the other hand, has presented evidence that he requested,
but was never provided, a Step II grievance form. (ECF No. 27-2, PageID.285-88, 305-
09). When a prisoner on modified grievance access properly requests a grievance form,
denial of such constitutes exhaustion of available administrative remedies as to the
claims or issues described in the grievance form request. See, e.g., Sedore v. Nagy, 2019
WL 8723746 at *7 (W.D. Mich., Nov. 26, 2019).
Interpreting the evidence in the light most favorable to Plaintiff compels the
conclusion that there exists a factual dispute that cannot be resolved at this juncture.
In sum, Defendants Zupon and Bonn have failed to satisfy their burden that Plaintiff
failed to properly exhaust his claim that on an unknown date between July 9, 2024, and
July 12, 2024, Defendant Zupon, at Defendant Bonn’s direction, confiscated Plaintiff’s
legal pleadings in retaliation for previous grievances Plaintiff filed. Accordingly, the
undersigned recommends that Defendants’ motion for summary judgment be denied as
to such claims.
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E. 	Grievance Request 003
On June 20, 2024, Plaintiff submitted a request, identified as Modified Access
Grievance 24-6-003, to file a grievance against Defendants Novak, Zupon, and Kerr.
(ECF No. 27-4, PageID.294). In his request, Plaintiff alleged that on June 16, 2024,
Defendants threatened to falsely charge him with a misconduct violation in retaliation
for filing grievances. Whether this request was granted and whether Plaintiff pursued
any grievance through all three steps is not relevant as the allegations in this grievance
request do not align with any of Plaintiff’s remaining claims. Thus, this grievance
request cannot serve to properly exhaust any of Plaintiff’s remaining claims against
Defendants Bonn, Zupon, or Kerr.
F. 	Grievance Request 004/Grievance ICF-24-06-0714-17b
On June 20, 2024, Plaintiff submitted a request, identified as Modified Access
Grievance 24-6-004, to file a grievance against Defendants Novak and Zupon. (ECF
No. 27-4, PageID.295). In his request, Plaintiff alleged that on June 16, 2024,
Defendants Novak and Zupon confiscated Plaintiff’s legal materials in retaliation for
previous grievances Plaintiff filed. Plaintiff’s request to file a grievance was granted
and Plaintiff thereafter filed Grievance ICF-24-06-0714-17b. 	(ECF No. 28-1,
PageID.325-26). Defendants concede that Plaintiff pursued this grievance through all
three steps of the grievance process. (ECF No. 28-1, PageID.314-15, 327-30).
As noted above, one of Plaintiff’s remaining claims is that on June 16, 2024,
Defendant Zupon confiscated Plaintiff’s legal pleadings in retaliation for filing
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grievances. It would appear, therefore, that this grievance properly exhausted this
particular claim. Defendant Zupon attempts to avoid this conclusion by arguing that
this grievance only alleged a denial of access to the courts, claims which, as previously
noted, were dismissed on screening. Defendant’s argument is rejected as Plaintiff’s
grievance plainly alleges retaliation. 	Specifically, the grievance alleges that
Defendants “in retaliation for grievance. . .did inappropriately confiscate” Plaintiff’s legal
material. (ECF No. 28-1, PageID.326). Accordingly, the undersigned recommends
that Defendant Zupon’s motion for summary judgment be denied as to this claim.
CONCLUSION
For the reasons articulated herein, the undersigned recommends that Defendants’
Motion for Summary Judgment (ECF No. 21) be granted in part and denied in part.
Specifically, the undersigned recommends that as to the following claims Defendants
have failed to satisfy their burden and that, therefore, their motion be denied: (1) on
June 16, 2024, Defendant Zupon confiscated Plaintiff’s legal pleadings in retaliation for
filing grievances and (2) on an unknown date between July 9, 2024, and July 12, 2024,
Defendant Zupon, at Defendant Bonn’s direction, confiscated Plaintiff’s legal pleadings
in retaliation for filing grievances. With respect to Plaintiff’s other remaining claims
against Defendants Bonn, Zupon, and Kerr, the undersigned recommends that
Defendants’ motion be granted and such claims be dismissed without prejudice for
failure to properly exhaust administrative remedies.
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OBJECTIONS to this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of the date of service of this notice. 28 U.S.C.
§ 636(b)(1)(C). Failure to file objections within the specified time waives the right to
appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,
Date: October 27, 2025 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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