Bush #576866 et al v. Washington et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMUEL BUSH,
Case No. 1:24-cv-947
Plaintiff,
Hon. Hala Y. Jarbou
v.
HEIDI WASHINGTON, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action by plaintiff Samuel Bush, a prisoner in the custody
of the Michigan Department of Corrections (MDOC). Plaintiff filed an amended complaint (ECF
No. 5) which included claims brought pursuant to 42 U.S.C. § 1983, the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), the Protection and Advocacy for Individuals
with Mental Illness Act, 42 U.S.C. § 10801 et seq. (PAIMI), and the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (RICO). 	See Opinion (ECF No. 6,
PageID.135). The alleged incidents occurred at the MDOC’s Ionia Correctional Facility (ICF).
On initial review of the amended complaint, the Court dismissed plaintiff’s claims
against defendants Simon, Bush, Heydens, Unknown Parties (referred to as ICF staff). 	See
Opinion (ECF No. 6) and Order (ECF No. 7).
The following claims remain in the case: (1) plaintiff’s Eighth Amendment claims
against defendants ICF Warden Davids, ICF Deputy Warden Bonn, ICF Assistant Deputy Warden
(ADW) R. Brokaw, ICF ADW J. Dunigan, ICF Residential Unit Manager (RUM) Luther, ICF PC
Walton L. Smith, ICF Psychiatrist Saad, ICF Psychiatrist Shafer, ICF Psychologist/Social Worker
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 1
of 9

2
Michelle Norton, ICF Psychologist Bookie, and ICF Unit Chief Maranka; and (2) plaintiff’s ADA
claim against defendant MDOC Director Heidi Washington. Opinion at PageID.131.
This matter is now before the Court on two motions (ECF Nos. 25 and 29). First,
defendants Washington, Davids, Bonn, Brokaw, Dunigan, Luther, Smith, Norton, Bookie, and
Maranka (collectively the “MDOC Defendants”) filed a motion for summary judgment based on
exhaustion (ECF No. 25). Second, defendants Hanna Saad, M.D. and Tracy Shafer, N.P. filed a
combined “Motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative for summary
judgment for failure to exhaust administrative remedies” (ECF No. 29). Plaintiff did not oppose
the motions.
I. 	Background
Plaintiff’s amended complaint involves his time spent in the Start Now Unit.
Opinion at PageID.132. As this Court explained,
The mission statement for the MDOC Start Units reads as follows: “To
provide a secure general population alternative to administrative segregation while
providing programming and other structured and unstructured out of cell activities
based upon the prisoner’s positive adjustment, with the goal of reintegration into
traditional general population.” See, e.g., Randall v. Washington, No. 1:24-cv-344,
2024 WL 3158258, at *2 (W.D. Mich. June 25, 2024); Miller v. Davids, No. 1:20-
cv-108, 2022 WL 329844, at *9 (W.D. Mich. Jan. 6, 2022).
Id. at fn. 1.
It appears that plaintiff was placed in ICF’s Start Now Unit on January 6, 2023. Id.
at PageID.132. “Plaintiff alleges that on January 6, 2023, and December 7, 2023, he was deprived
of basic necessities such as toothpaste, deodorant, soap, and over-the-counter medications as a
result of being deprived of Secure Pak access.” Id.
Plaintiff states that Defendants Washington, Bush, Heydens, Davids, Bonn,
Brokaw, Dunigan, Luther, Smith, Saad, Schafer, Norton, Bookie, and Maranka are
the Start Program Coordinators and that he notified each of them of the
unconstitutional conditions on March 22, 2023, and December 10, 2023. Plaintiff
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 2
of 9

3
states that he was held in segregation for more than seven days (nearly two years)
and because he is mentally ill, he experienced increased depression, anxiety, sleep
problems, paranoia, nightmares, memory loss, anger, thoughts, suicidal ideation,
and decompensation. Plaintiff also asserts that he suffered from weight loss and
delirium from engaging in hunger strikes to protest his placement in the Start
program.
Id. at PageID.133 (internal citations omitted)..
Among other things, plaintiff alleged that he was diagnosed with several mental
disorders and that he was placed in the Start Now Program in retaliation for filing grievances. Id.
Plaintiff claims that the Start Program “is falsely portrayed as a mental health program in order to
receive ‘additional public funds and funds from philanthropist organizations.’” Id. “Plaintiff states
that conditions in the program include management according to segregation standards, with minor
store and J-Pay privileges in certain stages of the program” and “that there are no programs
provided in the Start Unit that he could not receive in the general population.” Id.
Plaintiff contends that the Start Now program is unconstitutional because it
“denies religious services, clean environment, law library access, . . . exaggerate[s]
programming[,] and create[s] mental illnesses.” Plaintiff claims that inmates in the
program are “treated sadistically and maliciously under the belief [they] are too
mentally ill to navigate through the courts.” Plaintiff “is not allowed to clean his
cell properly and sometimes not at all.” He contends that he must be escorted to
the shower and yard cages in handcuffs, and “is fed in his filthy cell.” Plaintiff is
not allowed to go to the gym for exercise. He “is required to attend SCC reviews
monthly like all other [administrative segregation] prisoners.” He suggests that the
Start Now program “is merely a front to hold Plaintiff in segregation indefinitely.”
Id. at PageID.134 (internal citations omitted).
II. 	Motion to dismiss
Defendants Dr. Saad and N.P. Shafer moved to dismiss the amended complaint for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The Court conducted an initial review
of plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915(e), § 1915A and 42 U.S.C. §
1997e(c), to determine whether it is frivolous, malicious, fails to state a claim upon which relief
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 3
of 9

4
can be granted or seeks monetary relief against a defendant that is immune from such relief. See
Opinion (ECF No. 6). Upon this initial review, the Court concluded that the amended complaint
was not subject to dismissal for any of the reasons listed above and that it stated Eighth
Amendment claims against Dr. Saad and N.P. Shafer. See Opinion at PageID.137-138, 141-144,
157-158. In reaching this conclusion, the Court determined that,
Although Plaintiff has by no means proven his Eighth Amendment claims, at this
stage of the proceedings, taking Plaintiff’s factual allegations as true and in the light
most favorable to him, the Court will not dismiss Plaintiff’s Eighth Amendment
claim regarding Plaintiff’s continued detention in segregation-like conditions
against Defendants Davids, Bonn, Brokaw, Dunigan, Luther, Smith, Saad, Schafer
[sic], Norton, Bookie, and Maranka.
Id. at PageID.143-144. There is no reason for the Court to perform a second review of plaintiff’s
allegations. Accordingly, Dr. Saad and N.P. Shafer’s motions to dismiss should be denied. 1
III. 	Summary Judgment
A. 	Legal standard
Defendants have moved for summary judgment for lack of exhaustion. “The court
shall grant summary judgment 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).
Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, 	electronically 	stored 	information, 	affidavits 	or 	declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
1 In reaching this determination, the Court notes that defendants Dr. Saad and N.P. Shafer did not ask the Court to
reconsider the screening opinion. See Saad and Shafer Brief (ECF No. 29, PageID.272-273).
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 4
of 9

5
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’
burden of proof in a motion for summary judgment:
The moving party bears the initial burden of establishing an absence of evidence to
support the nonmoving party’s case. Once the moving party has met its burden of
production, the nonmoving party cannot rest on its pleadings, but must present
significant probative evidence in support of the complaint to defeat the motion for
summary judgment. The mere existence of a scintilla of evidence to support
plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.
Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment,
the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving
party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
Plaintiff did not file a responsive brief as required by W.D. Mich. LCivR 7.2(c)
which requires that “any party opposing a dispositive motion shall, within twenty-eight (28) days
after service of the motion, file a responsive brief and any supporting materials”. “The fact that
there has been no response to a summary judgment motion does not, of course, mean that the
motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). The
trial court is required to “intelligently and carefully review the legitimacy of such unresponded-to
motion” and cannot “blithely accept the conclusions argued in the motion.” Guarino v. Brookfield
Township Trustees, 980 F.2d 399, 407 (6th Cir. 1992). 	However, when a motion for summary
judgment is unopposed, “[n]othing in either the Rules or case law supports an argument that the
trial court must conduct its own probing investigation of the record” to demonstrate the existence
of genuine issues of material fact. Id. at 405.2
2 The Court notes that plaintiff included a “verification” at the end of his complaint, presumably so that it could serve
as supporting material for a response to a motion for summary judgment. See Amend. Compl. at PageID.128; Lavado
v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (a verified complaint has the same force and effect as an affidavit for
purposes of responding to a motion for summary judgment). Here, there are no verified allegations which address the
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 5
of 9

6
B. 	Lack of Exhaustion
1. 	Exhaustion requirement
The Prison Litigation Reform Act (PLRA) provides that a prisoner bringing an
action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available
administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S.
731 (2001). A prisoner must 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. See
Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. 	One reason for creating prisoner grievance
procedures under the PLRA was to create an administrative record for the court.
Requiring exhaustion allows prison officials an opportunity to resolve disputes
concerning the exercise of their responsibilities before being haled into court. This
has the potential to reduce the number of inmate suits, and also to improve the
quality of suits that are filed by producing a useful administrative record.
Jones v. Bock, 549 U.S. 199, 204 (2007).
In order to properly exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable procedural
rules. Id. at 218; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). “Compliance with prison grievance
procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’” Jones, 549 U.S.
at 218.
2. 	MDOC Grievance process
The MDOC requires prisoners to follow a three-step process to exhaust grievances.
See MDOC Policy Directive (“PD”) 03.02.130 (effective March 18, 2019). A prisoner must first
attempt to resolve a problem with the staff member within two business days of becoming aware
exhaustion issues raised in defendants’ briefs. Even if plaintiff had included some facts regarding exhaustion, it is not
the function of this Court to create legal arguments for plaintiff to respond to defendants’ motion. “The Court’s role
is adjudicatory; it is not an advocate.” Burley v. Miller, 241 F. Supp. 3d 828, 840 (E.D. Mich. 2017).
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 6
of 9

7
of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ Q. If
the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within
five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶
Q and S. The Policy Directive 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 ¶ S (emphasis in original). The prisoner must send the Step I grievance to the appropriate
grievance coordinator. Id. at ¶ W. If the prisoner is dissatisfied with the Step I response, or does
not receive a timely response, he must request the appropriate form and send it to the Step II
Grievance Coordinator. Id. at ¶ DD. Finally, if a prisoner is dissatisfied with the Step II response,
or does not receive a timely response, he must send a completed Step III grievance, using the
appropriate form, to the Grievance and Appeals Section. Id. at ¶ HH.
C. 	Discussion
1. 	MDOC Defendants
There is no evidence that plaintiff Bush exhausted any grievances before filing this
complaint. The Clerk’s Office docketed the original complaint as filed on September 6, 2024. See
Comp. (ECF No. 1).3 The MDOC Defendants point out that plaintiff did not pursue any Step III
grievances from January 1, 2018 through November 8, 2024. 	See MDOC Prisoner Step III
3 The Court notes that under the prison mailbox rule, a prisoner’s court papers are deemed filed at the time he
“delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988).
“Under this relaxed filing standard, a pro se prisoner’s complaint is deemed filed when it is handed over to prison
officials for mailing to the court. Cases expand the understanding of this handing-over rule with an assumption that,
absent contrary evidence, a prisoner does so on the date he or she signed the complaint.” Brand v. Motley, 526 F.3d
921, 925 (6th Cir. 2008) (internal citations omitted). Based on the prison mailbox rule, plaintiff’s lawsuit was filed
long before September 6, 2024. 	The complaint was postmarked on September 4, 2024 (PageID.66) and the co-
plaintiffs signed the complaint months before that date. For example, plaintiff Bush signed his “verification” on
December 12, 2023. PageID.59. The first named co- plaintiff, Alerilio Evans, signed a “verification” on September
21, 2023 (PageID.47) and then signed the complaint again on December 4, 2023 (PageID.46).
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 7
of 9

8
Grievance Report (ECF No. 26-4). 	In short, there is no evidence that plaintiff exhausted a
grievance against the MDOC Defendants before filing this lawsuit. 	See 42 U.S.C. § 1997e(a).
Based on this record, plaintiff did not properly exhaust a grievance to support his claims against
any of the MDOC Defendants. 	Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93.
Accordingly, MDOC Defendants Washington, Davids, Bonn, Brokaw, Dunigan, Luther, Smith,
Norton, Bookie, and Maranka’s motion for summary judgment should be granted.
2. 	Defendants Dr. Saad and N.P. Tracy Shafer
Defendants Dr. Saad and N.P. Shafer also seek summary judgment on the basis of
exhaustion. These defendants also pointed out that plaintiff did not file any grievances during the
relevant time period. These defendants presented a copy of plaintiff’s MDOC Prisoner Step III
Grievance Report from January 1, 2019 through June 30, 2025 (ECF No. 29-1).4 Based on this
record, plaintiff did not properly exhaust any grievances against Dr. Saad or N.P. Shafer. 	See
Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. 	Accordingly, defendants Saad and
Shafer’s motion for summary judgment should be granted.
IV. 	Recommendation
For these reasons, I respectfully recommend that defendants Washington, Davids,
Bonn, Brokaw, Dunigan, Luther, Smith, Norton, Bookie, and Maranka’s motion for summary
judgment (ECF No. 25) be GRANTED and that they be DISMISSED from this action.
I further recommend that defendants Saad and Shafer’s motion to dismiss (ECF No.
29) be DENIED.
4 The Court notes that defendants Dr. Saad and N.P. Shafer presented the MDOC Prisoner Step III Grievance Report
in a different format from the MDOC defendants. However, both documents reflect that plaintiff did not file any
grievances through Step III before filing this lawsuit.
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 8
of 9

9
I further recommend that defendants Saad and Shafer’s motion for summary
judgment (ECF No. 29) be GRANTED and that they be DISMISSED from this action.
I further recommend that this lawsuit be DISMISSED.
Dated: January 5, 2026 	/s/ Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Case 1:24-cv-00947-HYJ-RSK ECF No. 33, PageID.<pageID> Filed 01/05/26 Page 9
of 9