Minier #184698 v. Bobay et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID FRED MINIER #184698,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 1:25-cv-777
DRAKE BOBAY, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me on Defendant Drake Bobay’s Motion for Summary Judgment
based on the affirmative defense of non-exhaustion. (ECF No. 19.) The motion is fully briefed and
ready for decision. Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the Court GRANT the
motion and dismiss Plaintiff’s claims against Defendant Bobay without prejudice.
I. Background
Plaintiff, a prisoner currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Carson City Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983
on July 14, 2025, against several MDOC employees based on events that occurred at the Lakeland
Correctional Facility (LCF) in February and March 2024. 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 only Plaintiff’s First Amendment retaliation claim against Defendant Bobay to proceed.
(ECF No. 8 at PageID.32.)
The Court previously summarized Plaintiff’s pertinent allegations as follows:
In Plaintiff’s complaint, he alleges that on February 14, 2024, he “approached [a
non-party] housing unit officer . . . and requested a work order for the shower floor”
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because “the paint was peeling up and what appeared to be black mold was
growing.” (Id., PageID.3.) On February 28, 2024, Plaintiff spoke with Defendant
Bobay “to follow up about the shower.” (Id.) Plaintiff then spoke to non-party
Acting Deputy Warden Cline about the matter on March 13, 2024. (Id., PageID.3–
4.) The matter remained unresolved, so Plaintiff “filed a grievance to compel prison
officials to act on these unsanitary conditions.” (Id., PageID.4.)
Subsequently, on March 29, 2024, a non-party “health inspector was doing his
annual inspection of [Plaintiff’s] housing unit,” and “the health inspector was
accompanied by [Defendant] Bobay.” (Id.) Plaintiff “requested and spoke to [the]
health inspector about the shower issue,” and “the health inspector agreed to take a
look.” (Id.)
“Approximately two to four hours after [Plaintiff] spoke to the health inspector,
[Defendant] Bobay[, a prison counselor,] conducted a shakedown on [Plaintiff’s]
cube.” (Id.) Plaintiff alleges that prison counselors “are not allowed to conduct a
shakedown of a cell without an officer present,” and that “this task is normally done
by a housing unit officer.” (Id.) Plaintiff concedes that “it may be true that
[Defendant] Bobay found items during the shakedown that could be classified as
contraband”; however, Plaintiff claims that Defendant Bobay “identified a myriad
of items that are not contraband” as contraband. (Id., PageID.4–5 (listing items that
Plaintiff believes are not contraband).) A misconduct report was issued for the
alleged contraband, and Plaintiff claims that “none of the[] items identified in the
misconduct report are contraband.” (Id., PageID.5.) Plaintiff alleges that as a result
of the misconduct, he “lost valuable personal items” and “lost his honor unit
housing status.” (Id., PageID.6.) Plaintiff also alleges that he “was treated with
disparate treatment because he was attempting to compel prison officials to address
unsanitary living conditions.” (Id., PageID.6–7.)
(Id. at PageID.21–22.)
Defendant Bobay now seeks summary judgment on the basis that Plaintiff failed to exhaust
his administrative remedies against him.
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.
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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
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
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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
resolve the issue with the staff member involved within two business days after becoming aware
of a grievable issue, unless prevented by circumstances beyond their 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). 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 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 may appeal the matter to
Step III. Id. at ¶ NN. The Step III grievance must be submitted within ten business days after
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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.
Under the version of the MDOC’s grievance policy in effect at the time of the events in
question, grievances challenging “decisions” made in Class I, II, or III misconduct hearings must
be pursued through the appeal process set forth in Policy Directive 03.03.105. Mich. Dep’t of Corr.
Policy Directive 03.02.130 ¶¶ P.9 and 11. If the prisoner claims that retaliation was the basis for
the misconduct ticket, he must exhaust his claim through the grievance process. Id. ¶¶ P.9 and 11.
In support of his motion, Defendant Bobay submits a Step III Grievance Report for Plaintiff
dated September 3, 2025, which shows the grievances arising out of LCF that Plaintiff filed at Step
I in May or June 2024 and pursued through Step III. (ECF No. 20-3.) The Step III Grievance
Report shows that Plaintiff filed the following Grievances: (1) LCF-24-06-0465-28e (0465
Grievance); and (2) LCF-24-06-0466-28j (0466 Grievance). (Id. at PageID.91.) In the 0465
Grievance, Plaintiff complained that Defendant Bobay shook down his cell on May 29, 2024, and
took his TV. Plaintiff alleged that Defendant Bobay issued him a contraband removal misconduct
ticket for a broken TV that was working fine and not broken. (ECF No. 20-4.) The Step I grievance
was rejected as untimely, and the rejection was upheld at Steps II and III of the grievance appeal
process. (ECF No. 20-3 at PageID.94–95.) In the 0466 Grievance, Plaintiff alleged that Defendant
Bobay broke his TV during a shakedown on May 29, 2024. (Id. at PageID.100.) The 0466
Grievance was also rejected as untimely, and the rejection was upheld at Steps II and III of the
grievance appeal process. (Id. at PageID.97–99.)
Defendant Bobay argues that neither the 0465 Grievance nor the 0466 Grievance could
have exhausted Plaintiff’s retaliation claims for two reasons. First, neither grievance alleged that
Bobay’s acts were retaliatory. Instead, Bobay argues, Plaintiff simply complained about the
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confiscation of his TV and the issuance of a misconduct ticket relating to the TV. Second, Bobay
contends that because both grievances were rejected during the grievance process, they could not
have exhausted Plaintiff’s claim. (ECF No. 20 at PageID.75.)
A prisoner complaining of retaliation need not use the term “retaliation” in his grievance,
but he must at least suggest some retaliatory motive sufficient to place prison officials on notice
that the prisoner is complaining of retaliation. See Doe v. Anderson, No. 15-13852, 2017 WL
4684614, at *4 (E.D. Mich. Oct. 18, 2017); Jackson v. Huss, No. 1:14-CV-426, 2015 WL 5691026,
at *7 (W.D. Mich. Sept. 28, 2015). Neither grievance described any circumstance that would have
alerted prison officials that Plaintiff was claiming that Defendant Bobay issued the misconduct
ticket due to retaliation. In addition, because the grievances were rejected as untimely, they could
not have exhausted Plaintiff’s claims against Defendant Bobay. See Rodriguez v. Stevie, No. 2:11-
CV-515, 2013 WL 1194720, at *1 (W.D. Mich. Mar. 22, 2013) (“[A] prisoner cannot properly
exhaust ‘by filing an untimely or otherwise procedurally defective administrative grievance.’”)
(quoting Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009)); Martin v. Bergh, No. 2:06-cv-119,
2008 WL 4283517, at *1 (W.D. Mich. Sept. 12, 2008) (citing Woodford, 548 U.S. at 90–91)
(same).
In his response, Plaintiff does not dispute that the cited grievances did not exhaust his
claim, nor does he argue that that he otherwise exhausted his claims through the MDOC’s
grievance procedure. Instead, he contends that he was not required to exhaust his claim through
the three-step grievance procedure.
First, he argues that “policy [d]oes not [r]equire [exhaustion] in this circumstance[.]” (ECF
No. 26 at PageID.116.) This is simply wrong. The MDOC’s grievance policy was an available
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administrative procedure that Plaintiff was required to pursue before filing his lawsuit. As
Defendant Bobay has shown, Plaintiff failed to exhaust a retaliation claim through that procedure.
Next, Plaintiff argues that he exhausted his claim because he filed a complaint alleging
retaliation with the MDOC’s Internal Affairs Section (IA). This argument fails for several reasons.
First, Plaintiff presents no evidence that he actually filed a complaint with IA, nor does he submit
a declaration or affidavit providing the circumstances of his alleged filing. Second, even if Plaintiff
had adequately demonstrated that he filed a complaint of retaliation with IA, his complaint would
not have fallen within IA’s jurisdiction to investigate. The applicable Policy Directive defines IA’s
jurisdiction as follows:
Internal Affairs has jurisdiction to investigate or assist in any Departmental
investigation, including all allegations of employee, contractor, and offender
misconduct. Generally, allegations concerning the conduct of offenders are not
investigated by Internal Affairs unless it also involves allegations of employee or
contractor misconduct. All allegations of prisoner misconduct are administered
pursuant to PD 03.03.105 “Prisoner Discipline.”
Mich. Dep’t of Corr. Policy Directive 01.01.140 ¶ W (effective 08/08/2022). As Defendant Bobay
has shown, matters within IA’s jurisdiction include: (1) employee work rule violations and staff
discriminatory harassment under Policy Directives 02.03.100 and 02.03.109; (2) Prison Rape
Elimination Act complaints under Policy Directive 03.03.140; and (3) critical incidents under
Policy Directives 01.05.120 and 06.04.136. Because Plaintiff’s retaliation complaint does not fall
within these areas, he could not have exhausted his claim through an IA complaint. See Jones v.
Tucker, No. 1:22-cv-159, 2023 WL 2394399, at *4 (W.D. Mich. Jan. 27, 2023), report and
recommendation adopted, 2023 WL 2388068 (W.D. Mich. Mar. 7, 2023) (“Even if Jones’ letter
to the authorities referenced incidents alleged in this case, sending a letter to Internal Affairs does
not exhaust a grievance under MDOC Policy.”).
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Next, Plaintiff attaches three Director’s Office Memorandums to his response brief, which
he references in his argument. Plaintiff fails to explain how those documents, concerning “Post-
Litigation Critique,” “Allegations of Retaliation by Doe Class Members [in 2013 and 2015 cases
pending in the Washtenaw County Circuit Court],” and “Discriminatory Harassment [under P.D.
02.03.109]” are pertinent to this action and, specifically, the instant exhaustion motion. (ECF No.
26-1 at PageID.131–35.) The answer is they are not.
Last, Plaintiff appears to contend that he was excused from pursuing his administrative
remedies under the grievance policy because such an attempt would have been futile. Both the
Sixth Circuit and district courts have routinely rejected prisoners’ futility arguments offered to
excuse the PLRA’s mandatory exhaustion requirement. As noted in Napier v. Laurel County, 636
F.3d 218 (6th Cir. 2011), the exhaustion “requirement is a strong one. To further the purposes
behind the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is
not available[]; even when the state cannot grant the particular relief requested[]; and “even where
the prisoners believe the procedure to be ineffectual or futile. . . .” Id. at 222 (citations and brackets
omitted. See also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e will not read futility or
other 	exceptions 	into 	statutory 	exhaustion 	requirements 	where 	Congress 	has 	provided
otherwise.”); Lane v. Russell, No. 98-3533, 1999 WL 196528, at *2 (6th Cir. Mar. 22, 1999)
(“Lane’s stated belief that exhaustion would have been futile because he would have had to present
his claim to the prison officials he sues in this case cannot excuse him from the explicit statutory
language 	requiring 	exhaustion 	of 	‘available’ 	administrative 	remedies.”). 	Thus, 	Plaintiff’s
subjective belief that the MDOC’s grievance process was futile or ineffective must be rejected.1
1 Plaintiff also attaches a copy of McCarthy v. Madigan, 503 U.S. 140 (1992), to his response,
apparently to support his argument that exhaustion was not required. However, McCarthy is
inapplicable because it was decided before Congress enacted the PLRA’s mandatory exhaustion
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IV. Conclusion
For the foregoing reasons, I recommend that the Court grant Defendant Bobay’s motion
for summary judgment, dismiss Plaintiff’s claim against him without prejudice, and terminate
this action.
Dated: February 9, 2026 	/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).
requirement. See Woodford, 548 U.S. at 84–85 (noting that in contrast to the PLRA’s exhaustion
requirement, the exhaustion provision at issue in McCarthy “did not require exhaustion if the
prisoner sought only money damages and such relief was not available under the relevant
administrative scheme”).
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