Moon #956376 v. Leon et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID MOON #956376,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 1:24-cv-1067
CARMEN MCINTYRE LEON, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me on MDOC Defendants McIntyre, Carey, Blessman, Dawdy, Cook,
Tilitson, Hudson, Dirschell, Cope, Carter, McClain, Lamontaine, Johnson, Cline, and Rurka’s
Motion for Summary Judgment on the Basis of Exhaustion (ECF No. 44) and non-MDOC
Defendants Ibrahim, Hill, Jindal, Couturier, and Ali’s Motion for Summary Judgment Based
Solely on the Failure to Exhaust Administrative Remedies. (ECF No. 57.) Plaintiff has responded
to both motions (ECF Nos. 51 and 59), and Defendants have replied. (ECF Nos. 56 and 62.) Both
motions are thus ready for decision. Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the
Court GRANT the MDOC Defendants’ motion with regard to Plaintiff’s claims against
Defendants McIntyre, Carey, Blessman, and Dawdy and DENY the motion with regard to the
remaining Defendants. I further recommend that the Court GRANT the motion of non-MDOC
Defendants Ibrahim, Hill, Jindal, Couturier, and Ali.
I. Background
Plaintiff, a prisoner currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Saginaw Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983 on
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August 20, 2024, against numerous MDOC employees and several MDOC contractor Defendants
based on events that occurred at the Lakeland Correctional Facility (LCF) from September to
December 2023. (ECF No. 1.) Following initial review of Plaintiff’s complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. § 1997e(c), the Court allowed the following claims
to proceed: (1) Eighth Amendment failure-to-protect claims against Defendants McIntyre, Carey,
Couturier, Blessman, Dawdy, Ibrahim, Hill, Jindal, and Ali as members of the Gender Dysphoria
Collaborative Review Committee (GDCRC) based on their failure to issue a gender dysphoria
management plan after confirming Plaintiff’s diagnosis of gender dysphoria in June 2023; (2)
Eighth Amendment failure-to-protect claims against Defendants Cook, Dirschell, Cope, Hudson,
Carter, Lamontaine, McClain, Johnson, Cline, Tilitson, and Rurka based on their refusal to act to
protect Plaintiff from harm at LCF concerning her gender dysphoric status; (3) Eighth Amendment
deliberate-indifference-to-medical-need claims against Defendants Carter, Lamontaine, Tilitson,
and McClain following the assault of Plaintiff on October 15, 2023, and against Johnson on two
other occasions; (4) First Amendment retaliation claims against Defendants McClain, Trarore,
Cline, and Rurka;1 and (5) state-law claims. (ECF No. 11 at PageID.18–19, 21–23.)
The Court previously summarized Plaintiff’s pertinent allegations as follows:
Plaintiff identifies as a gender dysphoric intersex woman, who uses she/her/hers
pronouns and is receiving hormone treatments as part of her gender affirming care.
(ECF No. 1, PageID.5–6.) In May 2023, Plaintiff received a diagnosis of gender
dysphoria, which was confirmed by the GDRC in June 2023. (Id., PageID.6.)
MDOC policy requires that the GDRC formulate a management plan for gender
dysphoric prisoners, including facility placement, housing accommodations, and
access to toilet and shower facilities in relative privacy in accordance with the
Prison Rape Elimination Act (PREA) due to the “known threat and high volume of
assaults associated with improper placement and housing of LGBTQI+ people,
especially those that identify as intersex, trans, or gender non-conforming.” (Id.)
1 The parties subsequently stipulated to dismiss Traore from the case. (ECF No. 27.) In spite of
the reference to Traore in ECF No. 31, Traore is no longer a party in this action.
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However, the GDRC did not provide Plaintiff with a management plan to address
her needs for housing accommodations or relative privacy. (Id.)
On September 22, 2023, in the absence of a management plan, Plaintiff was
transferred to LCF, which houses prisoners in an “open setting which consists of 6
to 8 man cubes.” (Id.) Upon arrival, Plaintiff informed healthcare of her status as a
gender dysphoric intersex woman; however, a non-party nurse informed Plaintiff
that she did not understand the term. (Id., PageID.7.) Plaintiff was placed in a six-
person open-setting cube with no relative privacy. (Id.) She spoke with Defendant
Cook who told Plaintiff that he couldn’t do anything because it was the weekend
although he had the authority to place Plaintiff in protective custody until the issue
was resolved. (Id.)
On 	September 	24, 	2023, 	during 	Plaintiff’s 	PREA 	screening, 	Plaintiff 	told
Defendant Dirschell in detail of her status as a gender dysphoric prisoner and her
fear of being sent to the E/F unit. (Id.) Defendant Dirschell told Plaintiff that
Plaintiff could not stay in intake and specifically moved Plaintiff to the E/F unit a
few days later. (Id.)
On September 27, 2023, Plaintiff’s non-party caseworker, Ms. Freds, told Plaintiff
that Plaintiff had no management plan, which should have been done pursuant to
MDOC policy. (Id.)
On September 29, 2023, Plaintiff was moved [to] the F1 unit, which was the furthest
from the officer’s station, and was placed in an open cube setting with seven
bunkmates. (Id.) That day, other prisoners began to sexually harass and threaten
Plaintiff. (Id.)
On October 2, 2023, Plaintiff met with Defendant Cope, explained “her situation,”
and asked to be moved to safer housing. (Id.) Defendant Cope refused Plaintiff’s
request and told Plaintiff that there was no proof that Plaintiff was gender
dysphoric. (Id., PageID.8.) From September 29, 2023, until October 15, 2023,
Plaintiff continued to face sexual harassment and hostility because she refused
“unwanted and unsolicited sexual advances.” (Id.)
On October 15, 2023, Plaintiff spoke with Defendants Carter and Hudson and
requested protection from prisoners who were pressing her for sex and threatening
her. (Id.) Defendant Carter denied Plaintiff’s request and “hours later,” Plaintiff
was violently sexually assaulted while in the restroom. (Id.)
On the morning of October 16, 2023, Plaintiff spoke with Defendants Carter and
Lamontaine, showed them her injuries from the day before, and again requested
protection. (Id.) Defendants denied Plaintiff’s request and refused to refer Plaintiff
to healthcare. (Id.) That same day, Plaintiff also spoke with Defendants Tilitson and
McClain and informed them of her intentions to harm herself, her dangerous living
conditions, and the assault that had taken place the day before. (Id.) Defendant
Tilitson left the room, and Defendant McClain told Plaintiff he didn’t want to hear
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about her being assaulted, or he would write her a ticket for fighting. (Id.,
PageID.8–9.) Defendant McClain denied Plaintiff’s request for mental health
services, returned Plaintiff to her unit, and issued Plaintiff a Class I misconduct,
which resulted in Plaintiff being placed in segregation that night. (Id., PageID.9.)
Once in segregation, Plaintiff informed non-party Officer Trarore of her suicidal
intent. (Id.) Officer Trarore called Defendant McClain, who threatened Plaintiff to
return to her regular cell as he did not want to do the paperwork. (Id.) Defendants
Tillitson and McClain denied Plaintiff’s request for suicide watch. (Id., PageID.10.)
On October 17, 2023, Plaintiff requested medical services from Defendant Johnson
on two occasions. (Id., PageID.9.) The first time, Defendant Johnson told Plaintiff
that “she was lying and that nothing was wrong with her f***** a**,” and the
second time, Defendant Johnson told Plaintiff “to do the world a favor and kill
herself.” (Id.) Plaintiff attempted to hang herself using a bedsheet attached to a
sprinkler and blacked out. (Id.) When Plaintiff awoke, Defendant Johnson and
others were standing around Plaintiff shouting, and Defendant Johnson “wrenched
her left arm while making comments about his desire to beat her.” (Id.) Plaintiff
was dragged to the strip search area, where her injuries were exposed. (Id.) While
there, Plaintiff asked “not to be hurt anymore.” (Id.) Non-party Officer Sullenberger
photographed Plaintiff’s ligature marks but refused to document Plaintiff’s other
injuries. (Id., PageID.10.) Plaintiff was placed in an observation cell. (Id.)
On or around October 18 or 19, 2023, Plaintiff spoke with Defendant Cline
regarding the events described herein. (Id.) Defendant Cline moved Plaintiff to the
E2 unit without addressing Plaintiff’s concerns. (Id.)
On November 9, 2023, Plaintiff began a hunger strike due to constant harassment
from other inmates in the dining hall, which caused Plaintiff to fear for her safety.
(Id.)
On November 12, 2023, Plaintiff was physically assaulted and threatened by
another inmate while in her cube. (Id.) Plaintiff was detained for illegally assaulting
that inmate but was exonerated by video footage. (Id.) Plaintiff was moved to the
C5 unit. (Id.) When Plaintiff expressed to Defendant Cline her desire to begin the
grievance process for the lack of action taken to address Plaintiff’s concerns,
Defendant Cline told Plaintiff that Defendant Cline was only allowing Plaintiff to
stay in C5 if Plaintiff did not “cause problems.” (Id., PageID.11.) Defendant Cline
told Plaintiff, “[L]eave the paperwork alone or I’ll move you back to the E or F
unit.” (Id.)
On December 15, 2023, Plaintiff asked non-party Officer Clevenger to speak to a
shift commander. (Id.) Officer Clevenger left to make a call and, when he returned,
told Plaintiff to cuff up. (Id.) Plaintiff was taken to solitary confinement where
Defendant Johnson called Plaintiff “transphobic epithets,” told Plaintiff that she
should kill herself, and threatened to attack Plaintiff during Plaintiff’s strip search.
(Id.)
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On December 22, 2023, Plaintiff was evaluated by non-party Physician’s Assistant
Ouelette, who informed Plaintiff that the GDRC had “rectified their mistake and
issued the proper housing accommodations along with [Plaintiff’s] hormonal
treatment” a week prior on December 15, 2023. (Id.) That same day, Plaintiff asked
Defendants Cline and Rurka “to be PREA compliant” and move Plaintiff to housing
unit A which was the only single or double-person cell unit. (Id.) Both Defendants
threatened to move Plaintiff back to the E/F units where she had been assaulted.
(Id., PageID.12.) When Plaintiff objected, Defendant Rurka threatened to classify
Plaintiff as involuntary solitary confinement and increase Plaintiff’s security setting
to maximum unless she agreed to stay in the open cube setting. (Id.)
(Id. at PageID.10–15.)
Defendants now seek summary judgment on the basis that Plaintiff failed to exhaust her
administrative remedies against them.
II. Motion Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact, and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Material facts
are facts that are defined by substantive law and are necessary to apply the law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could return
judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party but
may grant summary judgment when “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
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
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find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.
1986). The Sixth Circuit has emphasized that the party with the burden of proof “must show that
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.” Arnett, 281 F.3d at 561 (quoting
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).
III. Discussion
Pursuant to 42 U.S.C. § 1997e(a), a prisoner must exhaust all available administrative
remedies before filing a lawsuit with respect to prison conditions under 42 U.S.C. § 1983. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). 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. Id. 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:
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 sets forth the applicable grievance procedure for
prisoners in MDOC custody. Prior to submitting a grievance, a prisoner is required to “attempt to
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resolve the issue with the staff member involved within two business days after becoming aware
of a grievable issue, unless prevented by circumstances beyond his/her control or if the issue is
believed to fall within the jurisdiction of Internal Affairs.” Mich. Dep’t of Corr. Policy Directive
03.02.130 ¶ W (effective 09/25/2023).2 If this attempt is unsuccessful (or is inapplicable), the
prisoner may submit a Step I grievance. Id. The Step I grievance must be submitted within five
business days after attempting to resolve the matter with staff. Id. 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.” Id. at ¶ Y.
If the prisoner is dissatisfied with the Step I response, or does not receive a timely response,
he or she 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. Id. at ¶ JJ. If the prisoner is
dissatisfied with the Step II response, or does not receive a timely Step II response, he or she may
appeal the matter to Step III. Id. at ¶ NN. The Step III grievance must be submitted within ten
business days after receiving the Step II response, or if no Step II response was received, within
ten business days after the date the Step II response was due. Id.
A. 	Proper Avenue for Exhaustion
In support of their motions, both sets of Defendants submit a Step III Grievance Report for
Plaintiff dated November 6, 2024, which shows the grievances arising out of LCF that Plaintiff
filed at Step I between September 28, 2023, and December 28, 2023, and exhausted through Step
III before initiating this action. (ECF No. 45-3; ECF No. 57-1.) The Step III Report shows that
2 Defendants submit the versions of Policy Directive 03.02.130 in effect through September 24,
2023, and beginning September 25, 2023. (ECF Nos. 45-2 and 45-4.) The more recent policy was
in effect for most of the relevant events, although it appears that there are no material differences
between the two versions.
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Plaintiff filed three grievances during this time, LCF-23-12-0978-28z, LCF-23-12-0977-28c, and
LCF-23-12-0979-27A. (ECF No. 45-3.)
The central issue raised by the parties’ submissions concerns the applicable procedure for
exhaustion of Plaintiff’s claims in this action. On the one hand, Defendants contend that Plaintiff
was required to exhaust all of his claims through the MDOC’s three-step grievance process set
forth above. (ECF No. 45 at PageID.148–50; ECF No. 57 at PageID.245–47.) On the other hand,
Plaintiff asserts that the MDOC’s Prison Rape Elimination Act’s (PREA) procedure applies to all
of his claims. (ECF No. 52 at PageID.210–12.) This issue is potentially dispositive, as it is
undisputed that none of these grievances listed in Plaintiff’s Step III Report exhausted any of
Plaintiff’s claims in this case.
The parties’ dispute arises from paragraph D. of the grievance policy, which provides, in
pertinent part, “Grievances filed regarding sexual abuse . . . shall not be processed as grievances
under this policy but shall be reported in accordance with PD 03.03.140 ‘Sexual Abuse and Sexual
Harassment of Prisoners - Prison Rape Elimination Act (PREA).’” Mich. Dep’t of Corr. Policy
Directive 03.02.130 ¶ D. More specifically, the dispute concerns the phrase “regarding sexual
abuse.” Defendants contend that this language limits the provision’s application to grievances
raising acts of sexual abuse and indicates that it does not reach assertions of failure to protect the
grievant from sexual abuse. Plaintiff contends that this language is broad enough to encompass
even complaints that are only indirectly related to an act of sexual abuse.
As support for their position, Defendants cite a case from this district, Grover v. Lange,
No. 21-cv-252, 2022 WL 485028 (W.D. Mich. Jan. 14, 2022), report and recommendation
adopted, 2022 WL 475609 (W.D. Mich. Feb. 16, 2022), and a case from the Eastern District of
Michigan, Perkins v. Johnson, No. 23-11530, 2024 WL 4481462 (E.D. Mich. Aug. 13, 2024),
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report and recommendation adopted 2024 WL 4039736 (E.D. Mich. Sept. 4, 2024). Grover
concluded, by examining the applicable versions of the MDOC’s general grievance policy and its
PREA policy, that the plaintiff was required to exhaust his failure-to-protect claims through the
MDOC’s ordinary three-step process. Grover, 2022 WL 485028, at *4–5. Perkins, citing Grover,
reached the same result. Perkins, 2024 WL 4481462, at *5 (concluding that the plaintiff’s failure-
to-protect claim “needed to be exhausted under the three-step grievance process” (citing Grover,
2022 WL 485028, at *5)). Both cases thus support Defendants’ argument that Plaintiff was
required to exhaust his failure-to-protect claims through the general grievance process.
For his part, Plaintiff relies on two more recent cases from the Eastern District of Michigan,
Rodgers v. Reviert, No. 23-13211, 2024 WL 5414972 (E.D. Mich. Dec. 11, 2024), report and
recommendation adopted, 2025 WL 542307 (E.D. Mich. Feb. 18, 2025), and Jablonski v. Obleton,
No. 23-13097, 2024 WL 4719481 (E.D. Mich. July 22, 2024), report and recommendation
adopted, 2024 WL 4381254 (E.D. Mich. Oct. 3, 2024). The courts in Jablonski and Rodgers
focused on the phrase “regarding sexual abuse.” In Jablonski, the court found that a reasonable
person could interpret it two ways, either encompassing only grievances pertaining to “physical
acts of abuse” or, more broadly, also encompassing acts or omissions “preventing or protecting a
prisoner from sexual abuse.”3 2024 WL 4719481, at *4. The court also examined the MDOC’s
PREA policy—the same version in effect during the events in this case—and found its scope broad
enough to encompass a prisoner’s claim that staff failed to protect him from sexual abuse. For
instance, the court pointed to the policy’s “zero-tolerance standard toward all forms of sexual
abuse” and its reference to the MDOC’s “approach to preventing, detecting, and responding to
such conduct.” Id. at *3. The court also noted other provisions of the policy that are consistent
3 The same magistrate judge issued the reports and recommendations in Jablonski and Rodgers.
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with protecting prisoners from sexual abuse, including the requirement that risk assessments be
conducted for all prisoners who are new to a facility. Id. Similarly, in Rodgers, in adopting the
magistrate judge’s recommendation to deny the defendants’ exhaustion motion, the district court
focused on the “plain meaning of the word ‘regarding,’” observing that its use “‘in a legal context
generally has a broadening effect, ensuring that the scope of a provision covers not only its subject
but also matters relating to that subject.’” 2025 WL 542307, at *5 (quoting Patel v. Garland, 596
U.S. 328, 339 (2022) (quoting Lamar, Archer & Cofrin, LLP v. Appling, 584 U.S. 709, 717
(2018))). The court found that “[s]trictly limiting the term ‘regarding sexual abuse’ to grievances
alleging direct sexual abuse . . . would be inconsistent with the broad sweep of the word ‘regarding’
as that term is used in the phrase ‘regarding sexual abuse.’” Id. The court declined to follow Grover
and Perkins because neither court had considered the significance of the phrase “regarding sexual
abuse,” and neither decision reflected any “meaningful advocacy on the key issue in dispute.” Id.
at *6–7.
Defendants contend that Rodgers and Jablonski are unpersuasive as they “run afoul of the
intent of both the grievance policy . . . and the PREA policy[.]” (ECF No. 56 at PageID.230.)
Defendants also point out that, following these decisions, the MDOC amended its PREA policy
“to make even more clear” that prisoners must use the normal grievance process to exhaust claims
indirectly related to sexual abuse, including claims that staff failed to protect against or prevent
sexual abuse. (Id. (citing Mich. Dep’t of Corr. Policy Directive 03.03.140 ¶¶ VV–XX (effective
07/21/2025).)
These arguments lack merit. First, I find the analysis in Rodgers and Jablonski persuasive
because it focuses on the actual language of the grievance policy, which is susceptible to an
interpretation covering all complaints “regarding” sexual abuse, whether direct or indirect. As
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noted in Rodgers, neither Glover nor Perkins addressed the present issue. Second, Defendants’
amendment argument proves Plaintiff’s point. If the PREA policy was already clear as to what
claims must be exhausted under the general grievance policy, there would have been no need for
an amendment to make it explicit.
Because Plaintiff contends that the reasoning in Rodgers and Jablonski renders all of his
claims subject to the PREA process, I next consider which claims, if any, were subject to
exhaustion through the general grievance process.
1. 	Failure to Protect—MDOC LCF Employees
For the reasons set forth in Rodgers and Jablonski, I conclude that Plaintiff’s claims against
Defendants Cook, Dirschell, Cope, Hudson, Carter, Lamontaine, McClain, Johnson, Cline,
Tilitson, and Rurka for failing to protect Plaintiff from specific threats of sexual assault at LCF
survive Defendants’ motion for summary judgment. At a minimum, Defendants have failed to
demonstrate as a matter of law that Plaintiff was required to use the general three-step grievance
process, as opposed to the PREA process, to exhaust his claims.
2. 	Failure to Protect—GDCRC Committee
Plaintiff’s claim regarding the GDCRC members is that after confirming her gender
dysphoria diagnosis in June 2023, the GDCRC failed to issue a management plan as required by
the MDOC’s gender dysphoria policy, Policy Directive 04.06.184. Plaintiff brings this claim under
a failure-to-protect theory based upon GDCRC members’ general awareness of the substantial
risks of serious harm trans and gender non-conforming prisoners such as Plaintiff face in the
traditional prison setting. (ECF No. 11 at PageID.18.) I conclude that the reasoning in Rodgers and
Jablonski does not apply to this claim, and Plaintiff was required to exhaust it through the three-
step grievance process for the following reasons.
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While there is no issue that an individual management plan serves to prevent or alleviate
the risks of sexual abuse to which trans and gender dysphoric prisoners are exposed in the
traditional prison setting, a management plan addresses a broad range of topics unrelated to
preventing sexual abuse, including access to toilet and shower facilities in relative privacy,
appropriate clothing/underclothing, and mental health services and supportive psychotherapy. 4
Mich. Dep’t of Corr. Policy Directive 04.06.184 ¶ L (effective 06/26/2017). Plaintiff could have
filed a grievance regarding the lack of a management plan at any time after June 2023 when she
received her diagnosis, or even on or after September 27, 2023, when it is alleged that a caseworker
at LCF told her that she had no management plan as required by MDOC policy. Any such
grievance would not reasonably be considered “regarding sexual abuse” as no assault had yet
occurred. Arguably, the same would be true even after Plaintiff experienced the incident of sexual
abuse on October 15, 2023, because, as noted, the gender dysphoria policy, rather than the PREA
policy, addresses management plans, and such plans deal with many issues.
Moreover, the grievance policy implicitly recognizes that it is the proper avenue for raising
trans or gender dysphoria-related issues. Paragraph G., which Plaintiff cites in her complaint to
support the position that “[i]ssues concerning gender dysphoria accommodations are not subjected
to MDOC grievance procedure and are non-grievable,” (ECF No. 1 at PageID.4), actually
provides: “Initial requests for gender identity accommodations shall not be processed as
grievances under this policy but shall be forwarded to the Health Unit Manager (HUM) for
processing as set forth in PD 04.06.160 ‘Medical Details and Special Accommodation Notices.’”
4 Although the parties have not submitted the gender dysphoria policy or the relevant version of
the PREA policy in connection with the present motions, I find it appropriate to take judicial notice
of the relevant versions of MDOC policies to the extent they are either publicly available on the
MDOC’s website or included in filings in cases on this Court’s docket. See Weisblat v. John
Carroll Univ., 748 F. Supp. 3d 517, 527 (N.D. Ohio 2024).
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Mich. Dep’t of Corr. Policy Directive 03.02.130 ¶ G (italics added). This provision suggests that
once the initial request is made through the Health Unit Manager, and the prisoner has received
her diagnosis, she may pursue subsequent issues through the grievance process. Because Plaintiff
admits that she received her diagnosis in June 2023, she was required to use the three-step process
to complain about the lack of a management plan. Therefore, this claim against the GDCRC
members is unexhausted.
3. 	Denial of Medical Care
Plaintiff alleges that Defendants Carter, Lamontaine, Tilitson, McClain, and Johnson
denied her requests for medical/mental health care due to the physical and mental injuries she
suffered as a result of the October 15, 2023 sexual assault. I find that the rationale set forth in
Rodgers and Jablonski applies to Plaintiff’s claim for deliberate indifference to a need for
medical/mental health care. A grievance concerning denial of medical care under these
circumstances might reasonably be considered “regarding sexual abuse” under “the broad sweep
of the word ‘regarding.’” Rodgers, 2025 WL 542307, at *5. In addition, to borrow from the
Jablonski court’s analysis, the PREA policy “outlines the [MDOC’s] approach to preventing,
detecting, and responding to [sexual abuse and sexual harassment].” 2024 WL 4719481, at *3
(quoting Mich. Dep’t of Corr. Policy Directive 03.03.140 (effective 04/05/2021)). As it
specifically pertains to Plaintiff’s deliberate indifference claim, the PREA policy states:
Prisoners who report that they have been the victim of a prisoner-on-prisoner sexual
abuse or employee sexual abuse shall be referred to the Bureau of Health Care
Services (BHCS) for examination, evidence collection, and treatment. They also
shall be referred to BHCS mental health services for assessment, counseling, and
other necessary mental health services consistent with the requirements set forth in
PD 04.06.180 “Mental Health Services.”
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Mich. Dep’t of Corr. Policy Directive 03.03.140 ¶ ZZ (effective 04/05/2021). A complaint
regarding lack of medical/mental health care following a sexual assault thus, invokes a concern
addressed the PREA policy.
Accordingly, I conclude the Defendants fail to carry their summary judgment burden of
demonstrating the absence of a genuine issue of material fact that Plaintiff failed to exhaust this
claim.
4. 	Retaliation
I conclude that Defendants McClain, Cline, and Rurka fail to demonstrate they are entitled
to summary judgment as to Plaintiff’s retaliation claims. Plaintiff alleges that: (1) Defendant
McClain issued her a Class I misconduct after she attempted to tell McClain about the October 15,
2023 assault; (2) Defendant Cline threatened to move Plaintiff from C5 back to the E or F unit if
she persisted in her efforts to file a grievance about the events that had occurred since October 15,
2023; and (3) Defendants Cline and Rurka threatened to move Plaintiff back to the E/F units where
she had been assaulted after she asked them to move her to the A housing unit.
To begin, a grievance based on retaliation for reporting sexual abuse could be considered
“regarding sexual abuse” given the “broad sweep of the word ‘regarding.’” Rodgers, 2025 WL
542307, at *5. Next, the PREA policy specifically states that “[p]risoners . . . who report sexual
abuse or sexual harassment . . . are protected from retaliation for reporting the incident[.]” Mich.
Dep’t of Corr. Policy Directive 03.03.140 ¶ PPP. The policy further states that “[p]risoners may
utilize the prisoner grievance system in accordance with PD 03.02.130 ‘Prisoner/Parolee
Grievances’ to report allegations of sexual harassment or retaliation.” Id. at WW (italics added). It
further provides that “because grievances require processing time and may not prompt immediate
action, prisoners in need of immediate assistance should notify an employee.” Id. This
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permissively-worded provision suggests that a prisoner may pursue a claim of retaliation based on
reports of sexual abuse or harassment under either the general grievance process or the PREA
process. Defendants thus fail to show that Plaintiff failed to exhaust his retaliation claim.
B. 	Plaintiff’s Other Arguments
In addition to arguing that all of her claims were subject to exhaustion under the PREA
policy, Plaintiff asserts that she is excused from exhaustion because: (1) Defendant Cline told
Plaintiff that her claims regarding the alleged events occurring from October 15–17, 2023 were
non-grievable; (2) on November 15, 2023, Defendant Cline threatened to move her from Unit C5
back to Unit E or F if she did not “leave the paperwork alone;” and (3) Plaintiff was placed on
modified grievance access from December 4, 2023, through March 3, 2024. (ECF No. 52 at
PageID.203, 213.) In light of the foregoing conclusions regarding Plaintiff’s failure-to-protect
claims against the MDOC LCF employees, the denial of medical/mental health care claims, and
the retaliation claims, I find no need to address these arguments. As for Plaintiff’s claim against
the GDCRC members, none of these arguments explains why Plaintiff was unable to file a
grievance regarding the lack of a management plan prior these events.
Finally, Plaintiff mentions a grievance she sent to GC Rohrig complaining of her improper
transfer to LCF that was returned unprocessed. (Id. at PageID.206.) Plaintiff’s purpose for
mentioning this grievance is unclear. In any event, I find it immaterial to the claims at issue as
Plaintiff has not sued any Defendant for an improper transfer to LCF.
IV. Conclusion
For the foregoing reasons, I recommend that the MDOC Defendants’ motion for summary
judgment (ECF No. 44) be granted as to Plaintiff’s claims against GDCRC members McIntyre,
Carey, 	Blessman, 	and 	Dawdy 	and 	denied 	as 	to 	Plaintiff’s 	failure-to-protect, 	denial-of-
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medical/mental health-care, and retaliation claims against Defendants Cook, Dirschell, Cope,
Hudson, Carter, Lamontaine, McClain, Johnson, Cline, Tilitson, and Rurka. I further recommend
that non-MDOC Defendants Ibrahim, Hill, Jindal, Couturier, and Ali’s motion for summary
judgment (ECF No. 57) be granted. Therefore, Plaintiff’s claims against all GDCRC members
should be dismissed without prejudice.
Dated: November 6, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 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).
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