Fleming #802151 v. McIntyre et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL A. FLEMING #802151,
Plaintiff, 	Hon. Robert J. Jonker
v. 	Case No. 1:25-cv-00136
KENNETH MCINTYRE, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant Bartlett’s Motion for Summary
Judgment (ECF Nos. 14, 15); Defendant McIntyre’s Motion to Dismiss, or in the
Alternative, for Summary Judgment (ECF No. 21); and Defendant Stamper’s Motion for
Summary Judgment (ECF No. 23). Pursuant to 28 U.S.C. § 636(b)(1)(B), the
undersigned recommends that Defendants’ motions be granted and this action
terminated.
BACKGROUND
Plaintiff is presently incarcerated with the MDOC at the Saginaw Correctional
Facility (SRF) in Freeland, Saginaw County, Michigan, but the events about which he
complains occurred at the Ionia Correctional Facility (ICF) in Ionia, Ionia County,
Michigan. (ECF No. 1). Plaintiff sued the following ICF medical personnel in their
individual and official capacities: Registered Nurse Kenneth McIntyre, Registered Nurse
Ruth Bartlett, Nurse Eileen Cannon, Registered Nurse Deborah Jones, Registered Nurse
Anna Stamper, and Registered Nurse Unknown Fosburg. (ECF No. 1). The Court
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screened out all claims except for Plaintiff’s individual capacity Eighth Amendment
medical care claims against Defendants McIntyre, Bartlett, and Stamper. (ECF Nos. 4,
5). In his complaint, Plaintiff alleges that the remaining Defendants received medical
kites describing Plaintiff’s symptoms between 2022 and 2023 and that each Defendant
did not take further action, such as referring Plaintiff for a medical appointment. (ECF
No. 1, PageID.7-11).
The remaining Defendants filed dispositive motions on exhaustion grounds.
(ECF Nos. 14, 21, 23). Plaintiff did not respond to Defendants’ motions. The Court
finds that oral argument is unnecessary. See W.D. MICH. LCIVR 7.2(d).
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,
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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 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
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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).
Defendants’ motions are unopposed. The Sixth Circuit has stated that, “[e]ven
when faced with an unopposed motion for summary judgment, the district court cannot
grant a motion for summary judgment without first considering supporting evidence and
determining whether the movant has met its burden.” Byrne v. CSX Transp., Inc., 541
F. App’x 672, 675 (2013); see also Delphi Auto. Sys., LLC v. United Plastics, Inc., 418 F.
App’x 374, 380-81 (6th Cir. 2011) (“ ‘[A] district court cannot grant summary judgment
in favor of a movant simply because the adverse party has not responded. The court is
required, at a minimum, to examine the movant’s motion for summary judgment to
ensure that he has discharged that burden.’ ” (quoting Carver v. Bunch, 946 F.2d 451,
454-55 (6th Cir. 1991))).
That said, 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.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399,
405 (6th Cir. 1992). “The court may rely on the moving party’s unrebutted recitation of
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the evidence in reaching a conclusion that facts are uncontroverted and that there is no
genuine issue of material fact.” Jones v. Kimberly-Clark Corp., 238 F.3d 421, at *3 (6th
Cir. 2000) (table).
ANALYSIS
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.
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MDOC Policy Directive 03.02.130 articulates the applicable grievance procedures
for prisoners in MDOC custody. Prior to submitting a grievance, a prisoner must
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 ¶ Q (Mar. 18, 2019). 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 ¶ W
(Mar. 18, 2019). 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 ¶ S (Mar. 18, 2019).
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 ¶ DD (Mar. 18, 2019). 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 ¶ HH (Mar. 18, 2019).
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Defendant McIntyre provides evidence that Plaintiff pursued five grievances
through Step III while at ICF.1 (ECF No. 21-2, PageID.169-97).
As a preliminary matter, the allegations in two grievances—Grievance No. ICF-
23-03-0268-28B and Grievance No. ICF-23-01-0123-28B—do not match the issues in
Plaintiff’s complaint. “To exhaust a claim under the PLRA, an incarcerated person’s
grievance claim must match the issue(s) found in the individual’s § 1983 complaint.”
Smith v. Washington, No. 24-12652, 2025 WL 2947014, at *4 (E.D. Mich. Aug. 29, 2025).
In Grievance No. ICF-23-03-0268-28B, Plaintiff alleges that a nonparty Corrections
Officer threatened him in March 2023 (ECF No. 21-2, PageID.176), and, in Grievance
No. ICF-23-01-0123-28B, Plaintiff alleges that he was not timely seen for mental health
medication concerns in January 2023 (ECF No. 21-2, PageID.196). Because the issues
in these grievances do not match the issues in Plaintiff’s complaint, Grievance No. ICF-
23-03-0268-28B and Grievance No. ICF-23-01-0123-28B cannot serve to exhaust any of
Plaintiff’s claims.
The undersigned now turns to the remaining three grievances.
Grievance No. ICF-22-10-1209-28B
On October 4, 2022, Plaintiff submitted Grievance No. ICF-22-10-1209-28B, in
which he alleged that he was scheduled for a CT scan while incarcerated at his previous
facility for joint pain. (ECF No. 21-2, PageID.191). He further alleged that a nonparty
1 Defendants Bartlett and Stamper each provided one of the five grievances in support
of their respective motions: Grievance No. ICF-22-12-1391-28E. (ECF No. 15-3,
PageID.103-11; ECF No. 23-2, PageID.229-37).
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doctor, apparently at ICF, told him that he may have arthritis, which would require a
scan to diagnose. (Id.). Plaintiff asserted that he was still having joint pain and that
“nothing [was] being done.” (Id.). The Step I grievance was rejected because it was
vague. (ECF No. 21-2, PageID.192). Plaintiff appealed to Step II, in which the
rejection was upheld. (ECF No. 21-2, PageID.189-90). Plaintiff also appealed to
Step III, but the rejection was again upheld. (ECF No. 21-2, PageID.188-89).
Defendants argue that this grievance does not name or otherwise identify any of
them. (ECF No. 15, PageID.88; ECF No. 21, PageID.151; ECF No. 23, PageID.213).
The Court agrees. “[T]he failure to name an individual does not necessarily render
exhaustion inadequate,” but the grievance “must at least include other information
identifying the official, such as the official’s title or position or even the facts set forth in
the grievance.” Herman v. Hawkins, No. 25-10924, 2026 WL 597551, at *3 (E.D. Mich.
Feb. 5, 2026), report and recommendation adopted, No. 2:25-CV-10924-TGB-EAS, 2026
WL 595001 (E.D. Mich. Mar. 2, 2026) (citations omitted). “To satisfy administrative
exhaustion, a grievant must provide the administrative agency with enough information
to give ‘fair notice’ of the people implicated in the alleged wrongdoing.” Savoie v. Oliver,
731 F. Supp. 3d 862, 872 (E.D. Mich. 2024) (quoting Burton v. Jones, 321 F.3d 569, 575
(6th Cir. 2003)). Here, Plaintiff failed to provide sufficient information to give any of
the remaining Defendants fair notice. A grievance that fails to give prison officials
notice of the nature of a claim or against whom it is directed is properly rejected as vague
under MDOC Policy, as the grievance was here. See Vandiver v. Correctional Med.
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Servs., Inc., 326 F. App’x 885, 890 (6th Cir. 2009). Defendants demonstrated that
Grievance No. ICF-22-10-1209-28B cannot serve to exhaust Plaintiff’s claims against any
remaining Defendant.
Grievance No. ICF-22-12-1391-28E
On December 2, 2022, Plaintiff submitted Grievance No. ICF-22-12-1391-28E, in
which he alleged that he had “been begging healthcare for medical attention” for months
to attend to “major pain in [his] spine.” (ECF No. 21-2, PageID.186). He further
alleged that “all healthcare does is give [him] motrin[,] which does not work[,] and a packet
for stretches[,] which makes pain worse.” (Id.). The Step I grievance was rejected for being
untimely. (ECF No. 21-2, PageID.187). Plaintiff appealed to Step II, in which the
rejection was upheld. (ECF No. 21-2, PageID.184-85). Plaintiff also appealed to Step
III, but the rejection was again upheld. (ECF No. 21-2, PageID.183-84).
Defendants again argue that this grievance does not name or otherwise identify
any of them. (ECF No. 15, PageID.88; ECF No. 21, PageID.151; ECF No. 23,
PageID.213). And again, for the same reasons articulated above, the Court agrees, with
the caveat that Plaintiff’s identification of “healthcare” as the party grieved is still
insufficient to exhaust his claims against the remaining Defendants. See Hill v.
Buchanan, No. 21-1673, 2022 WL 16580149, at *3 (6th Cir. Sept. 8, 2022) (finding that
Step I references “only to ‘health care’ and ‘medical’ in general” fail to exhaust claims
against the unnamed and unidentified defendants); Bonga v. Abdellatif, No. 18-2074,
2019 WL 4580389 at *3 (6th Cir. Apr. 26, 2019) (rejecting argument that grievant
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exhausted claims against unnamed healthcare personnel “by mentioning ‘medical
providers’ in his grievances”).
This grievance was also properly rejected. A grievance “shall be rejected” if it is
not filed in a timely manner. MDOC Policy Directive 03.02.130 ¶ P(5) (Mar. 18, 2019).
Under MDOC Policy Directive 03.02.130 ¶ Q (Mar. 18, 2019), Step I grievances must be
filed within five business days after the grievant attempted to resolve the issue.
“Grievances and grievance appeals at all steps shall be considered filed on the date
received by the Department.” MDOC Policy Directive 03.02.130 ¶ T (Mar. 18, 2019).
Here, Defendants submitted evidence that Plaintiff attempted to resolve the issue on
November 22, 2022, and that MDOC received the grievance on December 7, 2022—nine
business days later.2 (ECF No. 21-2, PageID.186-87). Plaintiff’s Step I rejection for
untimeliness was upheld at Step II and Step III. (ECF No. 21-2, PageID.183, 185).
Therefore, Defendants demonstrate that this grievance was untimely. Accordingly, this
grievance cannot serve to exhaust any of Plaintiff’s claims.
Grievance No. ICF-23-01-0114-28E
Finally, on January 25, 2023, Plaintiff submitted Grievance No. ICF-23-01-0114-
28E, in which he alleged the following:
This facility has serious issues with adequate medical treatment[.]
I addressed all issues with medical provider when seen in December[.]
2 Under MDOC Policy Directive 03.02.130 ¶ A (Mar. 18, 2019), a “business day” is
defined as “Monday through Friday excluding State observed holidays.” The State of
Michigan observed Thanksgiving on November 24, 2022, and November 25, 2022, which
were excluded from the calculation. See https://www.michigan.gov/som/government/
state-holidays (last visited May 7, 2026).
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After weeks of waiting for response[,] I kited yet again and was told it was
being reviewed. There is no reason I should be forced to suffer while they
take their sweet time doing nothing. This is cruel and unusual
treatment[.] It is my right for treatment.
(ECF No. 21-2, PageID.181). The Step I grievance was rejected for being untimely.
(ECF No. 21-2, PageID.182). Plaintiff appealed to Step II, in which the rejection was
upheld. (ECF No. 21-2, PageID.179-80). Plaintiff also appealed to Step III, but the
rejection was again upheld. (ECF No. 21-2, PageID.178-79).
Defendants again argue that this grievance does not name or otherwise identify
any of them. (ECF No. 15, PageID.88; ECF No. 21, PageID.151; ECF No. 23,
PageID.213). And again, for the same reasons articulated above, the Court agrees.
This grievance was also properly rejected.
A grievance “shall be rejected” if it is not filed in a timely manner. MDOC Policy
Directive 03.02.130 ¶ P(5) (Mar. 18, 2019). Under MDOC Policy Directive 03.02.130
¶ Q (Mar. 18, 2019), Step I grievances must be filed within five business days after the
grievant attempted to resolve the issue. “Grievances and grievance appeals at all steps
shall be considered filed on the date received by the Department.” MDOC Policy
Directive 03.02.130 ¶ T (Mar. 18, 2019). Here, Defendants submitted evidence that
Plaintiff attempted to resolve the issue on January 7, 2023, and that MDOC received the
Step I grievance on January 30, 2023—fifteen business days later.3 (ECF No. 21-2,
3 The State of Michigan observed Martin Luther King, Jr. Day on January 16, 2023,
which 	was 	excluded 	from 	the 	calculation. 	See
https://www.michigan.gov/som/government/state-holidays (last visited May 7, 2026).
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PageID.186-87). Plaintiff’s Step I rejection for untimeliness was upheld at Step II and
Step III. (ECF No. 21-2, PageID.178, 180). Therefore, Defendants demonstrate that
this grievance was untimely. Accordingly, this grievance cannot serve to exhaust any
of Plaintiff’s claims.
Based on the uncontested record, there is no evidence that Plaintiff properly
exhausted any grievance to support his claims against any remaining Defendant. Bock,
549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, Defendants’ motions for
summary judgment should be granted.
CONCLUSION
For the reasons articulated herein, the Court recommends that Defendant
Bartlett’s Motion for Summary Judgment (ECF Nos. 14, 15); Defendant McIntyre’s
Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 21); and
Defendant Stamper’s Motion for Summary Judgment (ECF No. 23) be granted and this
action terminated. 	For the same reasons the undersigned makes these
recommendations, the undersigned finds that an appeal of such would be frivolous and
not in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
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).
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Respectfully submitted,
Dated: May 8, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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