Hernandez #780141 v. Bonn et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:25-cv-00822-HYJ-MV
ECF No. 20, PageID .< pageID> Filed 05/15/26 of 18
Page 1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
ROBERT SCOTT HERNANDEZ #780141,
Case No. 1:25-cv-822
Plaintiff,
V.
Hon. Hala Y. Jarbou Chief U.S. District Judge
DALE BONN, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendant Quartermaster B. Nielsen's motion to dismiss, or in the alternative, for summary judgment. ECF No. 13.
Plaintiff - state prisoner Robert Scott Hernandez - filed a verified complaint alleging that Defendants Warden Dale Bonn and Quartermaster B. Nielsen were deliberately indifferent to Plaintiff's serious medical needs while he was incarcerated at Ionia Correctional Facility (ICF) in Ionia, MI. ECF No. 1. More specifically, Plaintiff asserts that he developed a skin fungus because Defendants refused to replace previously used and soiled linens in a timely manner. The Court dismissed Warden Bonn in a screening opinion issued September 4, 2025. ECF Nos. 4, 5.
Defendant Quartermaster Nielsen argues that the claims against him should be dismissed because the statute of limitations has expired. ECF No. 14. Alternatively, Quartermaster Nielson argues that the claims should be dismissed
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AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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because Plaintiff failed to exhaust his administrative remedies. 	Plaintiff has not
responded to Defendant Nielson’s motion. 	In the opinion of the undersigned, it is
recommended that the Court grant Defendant Nielson’s motion and dismiss him from
this lawsuit.
II. 	Factual Allegations
Plaintiff asserts that he was placed in segregation on August 28, 2021. 	ECF
No. 1, PageID.5. 	He says he was given 2 wool blankets, 2 sets of sheets, 2
pillowcases, 3 towels, and 2 wash clothes that were all previously used and stained
with bodily fluids. 	Id. 	Plaintiff claims that he “kited” health care in September
2021 about scabs/sores inside his navel. 	Id. 	He states that he requested new, clean
linens but Quartermaster B. Nielsen denied his request because the policy allowed
linen exchanges every 6 months. 	Id. 	Plaintiff asserts that he continued to kite
Quartermaster Nielsen for clean linens, to no avail. 	Id. 	He states that he
submitted additional linen request forms in April and July of 2022, and that
Quartermaster Nielsen denied these as well. 	Id., PageID.6.
Next, Plaintiff asserts that he showed Institutional Chaplain C. Cheney his
scabs and sores in August of 2022. 	Id. 	Plaintiff says Chaplain Cheney handed in a
new linen request form on Plaintiff’s behalf, but Quartermaster Nielsen also denied
that request. 	Id., PageID.7.
Plaintiff states that on September 18, 2024, he was studying the prisoner
grievance policy and discovered it was not too late to file a grievance for the deliberate
indifference that caused his skin fungus. 	Id. 	Plaintiff asserts that he filed a
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grievance 	on 	September 	19, 	2024. 	Id. 	Plaintiff 	says 	his 	grievance 	was
subsequently rejected. 	Id. 	Hernandez asserts that he appealed the rejection. 	Id.,
PageID.8.
Plaintiff asserts that he developed skin fungus due to the lack of clean linens
in Ionia’s segregation unit. 	Id., PageID.8-9. 	He claims that his condition is ongoing
and suffers from scabs, sores, and skin irritation. 	Id. 	Plaintiff says his condition
requires antibiotic pills and medically prescribed cream and shampoo. 	Id.
III. 	Motion to Dismiss
The Federal Rules provide that a claim may be dismissed for “failure to state
a claim upon which relief can be granted.” 	Fed. R. Civ. P. 12(b)(6). 	To survive a
Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim for relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). 	Put differently, if plaintiffs
do “not nudge[] their claims across the line from conceivable to plausible, their
complaint must be dismissed.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
In determining whether a claim has facial plausibility, a court must construe
the 	complaint 	in 	the 	light 	most 	favorable 	to 	the 	plaintiff, 	accept 	the 	factual
allegations as true, and draw all reasonable inferences in favor of the plaintiff.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Those
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factual allegations “must contain either direct or inferential allegations respecting all
the material elements to sustain recovery under some viable legal theory.” 	League
of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (internal
citations omitted). “When a court is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion so
long as they are referred to in the Complaint and are central to the claims contained
therein.” 	Id.
Plaintiff is proceeding pro se. 	As such, his pleadings are subject to less
stringent standards than those prepared by attorneys. 	Estelle v. Gamble, 429 U.S.
97 (1976); Haines v. Kerner, 404 U.S. 519 (1972).
State statutes of limitations and tolling principles apply to determine the
timeliness of claims asserted under 42 U.S.C. § 1983. 	Wilson v. Garcia, 471 U.S.
261, 268 69 (1985). 	For civil rights suits filed in Michigan under § 1983, the statute
of limitations is three years. 	Mich. Comp. Laws § 600.5805(2); Carroll v. Wilkerson,
782 F.2d 44, 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999
WL 96990, at *1 (6th Cir. Feb. 2, 1999). 	Accrual of the claim for relief, however, is
a question of federal law. 	Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier
v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). 	The statute of limitations begins to run
when the aggrieved party knows or has reason to know of the injury that is the basis
of his action. 	Collyer, 98 F.3d at 220.
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Here, Hernandez asserts that Defendants violated his Eighth Amendment
rights by failing to provide clean linens between August 2021 and August 2022. 	ECF
No. 1. 	Hernandez knew about the alleged harms when they occurred; he states he
experienced scabs and sores throughout that period. 	Id. 	Plaintiff filed this lawsuit
on July 24, 2025. 	Thus, Plaintiff’s claims after July 24, 2022, are timely. 	However,
his claims deriving from alleged conduct that occurred prior to July 24, 2022 are
barred as untimely by the statute of limitations. 	See Bozzo v. Nanasy, 159 F.4th
1111, 1118 (6th Cir. 2025) (noting that Michigan law does not permit common law
equitable tolling of express limitations periods); Wershe v. City of Detroit, 112 F.4th
357, 371 (6th Cir. 2024) (stating that because “claims are governed by Michigan’s
express three-year statute of limitations for personal-injury claims, Mich. Comp.
Laws § 600.5805(2), equitable tolling appears to be unavailable under Michigan law”).
Here, Plaintiff did not respond to Defendants’ motions. 	The undersigned sees
no reason to conclude that equitable or statutory tolling principles might apply to
Plaintiff’s earlier claims. 	In the opinion of the undersigned, Hernandez’s claims for
conduct 	prior 	to 	July 	24, 	2022, 	are 	untimely. 	Accordingly, 	the 	undersigned
respectfully recommends that the Court grant Defendant Nielsen’s motion to dismiss
as to these claims.
IV. Motion for Summary Judgment
Next, Defendant Nielsen argues that Plaintiff’s Eighth Amendment claims
should be dismissed because Plaintiff failed to exhaust his administrative remedies.
Summary judgment is appropriate when the record reveals that there are no
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genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether
summary judgment is appropriate is “whether the evidence presents a sufficient
disagreement to require submission to a jury[1] or whether it is so one-sided that one
party must prevail as a matter of law.” 	State Farm Fire & Cas. Co. v. McGowan, 421
F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in favor of the party opposing
the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
The materials a court may consider in evaluating a motion for summary
judgment are identified in Fed. R. Civ. P. 56(c). Courts, however, allow a plaintiff to
rely on a “verified complaint,” which has “ ‘the same force and effect as an affidavit’
for purposes of responding to a motion for summary judgment.” Lavado v. Keohane,
992 F.2d 601, 605 (6th Cir. 1993) (quoting Williams v. Browman, 981 F.2d 901, 905
(6th Cir.1992)). 	To qualify as “verified,” a complaint must be executed in a manner
1 	The Seventh Amendment does not always require courts to submit factual
disputes about exhaustion to a jury. 	Lee v. Willey, 789 F.3d 673, 678 (6th Cir.
2015). 	However, when the exhaustion issue is intertwined with the merits of a
claim, the Seventh Amendment requires a jury trial on the exhaustion issue. 	Perttu
v. Richards, 605 U.S. 460, 479, 145 S.Ct. 1793, 1807 (2025).
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that meets the requirements set forth in 28 U.S.C. § 1746. 	Id. 	In contrast,
complaints that are unverified are not considered Rule 56 evidence. 	Cooper v.
Parker, No. 2:17-CV-00155, 2019 WL 5273967, at *2 (W.D. Mich. Aug. 29, 2019)
(citations omitted), report and recommendation adopted, No. 2:17-CV-155, 2019 WL
4686423 (W.D. Mich. Sept. 26, 2019). 	Here, Plaintiff has not presented a verified
statement to the Court.
When, as here, the non-movant fails to respond to a motion for summary
judgment, the Court must “examine the movant’s motion for summary judgment to
ensure that he has discharged his initial burden.” Stough v. Mayville Cmty. Sch., 138
F.3d 612, 614 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir.
1991)).
a. Exhaustion of Administrative Remedies
A prisoner’s failure to exhaust his administrative remedies is an affirmative
defense, which Defendants have the burden to plead and prove. 	Jones v. Bock, 549
U.S. 199, 212-16 (2007). 	“[W]here the moving party has the burden -- the plaintiff
on a claim for relief or the defendant on an affirmative defense -- 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 repeatedly emphasized that the party with the burden of proof
“must show 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.”
Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). 	Accordingly,
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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).
Pursuant to the applicable portion of the Prison Litigation Reform Act (PLRA),
42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions
under 42 U.S.C. § 1983 must exhaust his available administrative remedies. 	Porter
v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). 	A
prisoner must first 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. 	Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215
F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).
In order to properly exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable
procedural rules. 	Jones, 549 U.S. at 218-19; 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 218-19. 	In rare
circumstances, the grievance process will be considered unavailable where officers
are 	unable 	or 	consistently 	unwilling 	to 	provide 	relief, 	where 	the 	exhaustion
procedures may provide relief, but no ordinary prisoner can navigate it, or “where
prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” 	Ross v. Blake, 578 U.S.
632, 644 (2016).
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“Beyond doubt, Congress enacted [Section] 1997e(a) to reduce the quantity and
improve the quality of prisoner suits.” Porter, 534 U.S. at 524. 	In the Court’s view,
this objective was achieved in three ways. 	First, the exhaustion requirement
“afforded corrections officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” 	Id. at 525. 	Second, “the internal
review might ‘filter out some frivolous claims.’” 	Id. (quoting Booth, 532 U.S. at
737). 	And third, “adjudication could be facilitated by an administrative record that
clarifies the contours of the controversy.” Id. When institutions provide adequate
notice as required under the PLRA, the opportunity to address the claims internally
furthers 	the 	additional 	goals 	of 	limiting 	judicial 	interference 	with 	prison
administration. 	Baker v. Vanderark, 1:07-cv-004, 2007 WL 3244075, *5 (W.D. Mich.,
Nov. 1, 2007).
The most common procedure through which a prisoner in MDOC custody
exhausts 	his 	administrative 	remedies 	is 	the 	grievance 	procedure 	set 	forth 	in
Michigan Department of Corrections (MDOC) Policy Directive 03.02.130 (effective on
March 18, 2019). 	According to the Policy Directive inmates must first attempt to
resolve a problem orally within two business days of becoming aware of the grievable
issue, unless prevented by circumstances beyond his or her control. 	Id. at ¶ Q. 	If
oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance
process and submit a completed grievance form within five business days of the
attempted oral resolution. 	Id. at ¶¶ Q, W. 	The inmate submits the grievance to a
designated grievance coordinator, who assigns it to a respondent. 	Id. at ¶ Y. 	The
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Policy Directive also 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).
If the inmate is dissatisfied with the Step I response, or does not receive a
timely response, he may appeal to Step II by obtaining an appeal form within ten
business days of the response, or if no response was received, within ten days after
the response was due. 	Id. at ¶ DD. 	The respondent at Step II is designated by the
policy. 	Id. at ¶ FF.
If the inmate is still dissatisfied with the Step II response, or does not receive
a timely Step II response, he may appeal to Step III using the same appeal form.
Id. at ¶¶ HH. 	The Step III form shall be sent 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. 	The Grievance and
Appeals Section is the respondent for Step III grievances on behalf of the MDOC
director. 	Id. at ¶ II.
In addition, the grievance policy provides that, where the grievance alleges
conduct that falls under the jurisdiction of the Internal Affairs Division pursuant to
Policy Directive 01.01.140, the prisoner may file his Step I grievance directly with the
inspector of the institution in which the prisoner is housed, instead of with the
grievance coordinator, as set forth in ¶ W of Policy Directive 03.02.130. 	Id. at ¶ R.
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In such instances, the grievance must be filed within the time limits prescribed for
filing grievances at Step I. 	Id. 	Regardless of whether the grievance is filed with
the grievance coordinator or the inspector, the grievance will be referred to the
Internal Affairs Division for review and will be investigated in accordance with
MDOC Policy Directive 01.01.140. 	The prisoner will be promptly notified if an
extension of time is needed to investigate the grievance. 	Id.
Where the grievance procedures are not available because the issue presented
is non-grievable, exhaustion of prison grievance procedures is not required. 	It is
well-established that a prisoner “cannot be required to exhaust administrative
remedies regarding non-grievable issues.” Figel v. Bouchard, 89 F. App’x 970, 971
(6th Cir. 2004); Mays v. Kentucky Dept. of Corrections, 2018 WL 4603153, at *3 (W.D.
Ky. Sept. 25, 2018) (“It is beyond debate that an inmate cannot be required to exhaust
administrative remedies regarding non-grievable issues.”); Reeves v. Hobbs, 2013 WL
5462147 (W.D. Ark. Sept. 3, 2013) (“Defendants cannot treat a complaint as non-
grievable, and therefore not subject to the grievance procedure, and then turn around
and maintain the claim fails because [the plaintiff] failed to follow the grievance
procedure. As the well known proverb states, they cannot have their cake and eat it
too.”).
However, where other administrative remedies are available, the prisoner is
required to exhaust those available remedies prior to filing a federal lawsuit. For
example, where an inmate claims that he received a retaliatory false misconduct,
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whether a Class I misconduct or a Class II or III misconduct2 , the inmate must first
raise the issue during the Misconduct Hearing. 	Siggers v. Campbell, 652 F.3d 681,
693−94. 	If the inmate is claiming to have received a retaliatory Class I misconduct,
he or she must then must “file a motion or application for rehearing [of his misconduct
conviction] in order to exhaust his or her administrative remedies before seeking
judicial review of the final decision or order.” Mich. Comp. Laws § 791.255(1); see also
Siggers, 652 F.3d at 693−94. 	Alternatively, if the inmate is claiming to have received
a retaliatory Class II or III misconduct, he or she must file an appeal based on
retaliation. 	MDOC PD 03.03.105 ¶¶ UUU-XXX; see also Jones v. Heyns, 2014 U.S.
Dist. LEXIS 55712 at *13−17 (W.D. Mich. Jan. 28, 2014).
When prison officials waive enforcement of these procedural rules and instead
consider a non-exhausted claim on its merits, a prisoner’s failure to comply with those
rules 	will 	not 	bar 	that 	prisoner’s 	subsequent 	federal 	lawsuit. 	Reed-Bey 	v.
Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). 	The Sixth Circuit has explained:
[A] 	prisoner 	ordinarily 	does 	not 	comply 	with 	MDOCPD 	130—and
therefore does not exhaust his administrative remedies under the
PLRA—when he does not specify the names of each person from whom
he seeks relief. 	See Reed-Bey v. Pramstaller, 603 F.3d 322, 324-25 (6th
Cir. 2010) (“Requiring inmates to exhaust prison remedies in the
manner 	the 	State 	provides—by, 	say, 	identifying 	all 	relevant
defendants—not 	only 	furthers 	[the 	PLRA’s] 	objectives, 	but 	it 	also
2 	Violations of written rules within the MDOC are classified as either Class I,
Class II or Class III misconducts. Class I consists of the most severe violations, and
Class III consists of the least severe. 	While Class I misconducts are considered
“major” misconducts and are “subject to all hearing requirements set forth in MCL
791.252”, Class II and III misconducts are considered “minor” misconducts and are
“subject to all requirements currently set forth in Department Administrative Rules
and 	policy 	directives 	for 	‘minor’ 	misconducts.” 	MDOC 	Policy 	Directive 	(PD)
03.03.103 ¶ B (eff. date 07/01/18).
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prevents 	inmates 	from 	undermining 	these 	goals 	by 	intentionally
defaulting their claims at each step of the grievance process, prompting
unnecessary and wasteful federal litigation process.”). 	An exception to
this rule is that prison officials waive any procedural irregularities in a
grievance when they nonetheless address the grievance on the merits.
See id. at 325. 	We have also explained that the purpose of the PLRA’s
exhaustion requirement “is to allow prison officials ‘a fair opportunity’
to address grievances on the merits to correct prison errors that can and
should be corrected to create an administrative record for those disputes
that eventually end up in court.” 	Id. at 324.
Mattox v. Edelman, 851 F.3d 583, 590−91 (6th Cir. 2017).3
b. Analysis
Here, Plaintiff asserts that Defendants denied him access to clean linens from
August 2021 to August 2022. 	He also contends that he filed a Step I grievance for
the alleged conduct in September 2024. 	ECF No. 1, PageID.7.
Defendant Nielsen provided a Step III Grievance Report for Hernandez with
grievances from the relevant timeframe at ICF highlighted:
3 	In Mattox, the Sixth Circuit held that a prisoner may only exhaust a claim
“where he notifies the relevant prison . . . staff” regarding the specific factual claim
“giving the prison staff a fair chance to remedy a prisoner’s complaints.” 	Id. at 596.
For example, grieving a doctor about his failure to give cardiac catheterization did
not grieve the claim that the doctor erred by not prescribing Ranexa.
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Filed 05/15/26
Case 1:25-cv-00822-HYJ-MV ECF No. 20, PageID .< pageID> of 18
MDOC Prisoner Step III Grievance Report 1/1/2019 to Present
Prisoner #:
780141
Last Name:
Hernandez
First Name:
Robert
Step III Rec'd
Grievance Identifier
Grievance Facility Category
Step I Received Date
Resolved Partially Resolved
Denied Rejected Closed Date Mailed
7/16/2025
KCF-25-05-0512-28A
28A
15
5/28/2025
Notes:
7/15/2025
KCF-25-05-0491-28℃
28℃
15
5/20/2025
Notes:
7/3/2025
KCF-25-05-0470-28D
28D
15 5/13/2025
7/30/2025
Notes:
7/3/2025
KCF-25-05-0490-28B
28B
15
5/20/2025
7/30/2025
Notes:
MDOC Prisoner Step III Grievance Report 1/1/2019 to Present
Prisoner #:
780141
Last Name:
Hernandez
First Name:
Robert
Step III Rec'd
Grievance Identifier
Grievance Facility Category
Step I Received Date
Resolved Partially Resolved
Denied Rejected Closed Date Mailed
X
1/15/2025
ICF-24-09-1093-28B
28B
14
9/26/2024
Notes:
5/17/2024
AMF-24-04-0481-28b
28b
2
4/15/2024
7/16/2024
Notes:
5/17/2024
AMF-24-04-0480-28i
28
2
4/15/2024
7/16/2024
Notes:
5/17/2024
AMF-24-04-0479-28b
28b
2 4/15/2024
7/16/2024
Notes:
14
8/13/2025
8/11/2025
2/3/2025

Case 1:25-cv-00822-HYJ-MV ECF No. 20, PageID .< pageID> Filed 05/15/26 of 18
MDOC Prisoner Step III Grievance Report 1/1/2019 to Present
Prisoner #:
780141
Last Name:
Hernandez
First Name:
Robert
Step III Rec'd
Grievance Identifier
Grievance Facility Category
Step I Received Date
Resolved Partially Resolved
Denied Rejected Closed Date Mailed
4/22/2024
AMF-24-03-0279-28c
28c
2
3/8/2024
Notes:
4/22/2024
AMF-24-03-0319-28a
28a
2 3/15/2024
Notes:
10/12/2023
AMF-23-08-1051-21C
21C
2
8/31/2023
10/24/2023
Notes:
X
10/10/2022
ICF-22-08-0874-28e
28e
14
8/17/2022
1/18/2023
Notes:
MDOC Prisoner Step III Grievance Report 1/1/2019 to Present
Prisoner #:
780141
Last Name:
Hernandez
First Name:
Robert
Step III Rec'd
Grievance Identifier
Grievance Facility Category
Step I Received Date
Resolved Partially Resolved
Denied Rejected Closed Date Mailed
X
9/2/2022
ICF-22-07-0786-12E2
12E2
14
7/26/2022
Notes:
5/21/2020
DRF-20-04-0911-27Z
27Z
5 4/13/2020
6/15/2020
Notes:
4/1/2020
DRF-20-01-0258-171
171
5 1/31/2020
6/15/2020
Notes:
10/11/2019
DRF-19-07-1581-17A
17A
5 7/24/2019
10/22/2019
Notes:
MDOC Prisoner Step III Grievance Report
1/1/2019 to Present
Prisoner #:
780141
Last Name:
Hernandez
First Name:
Robert
Step III Rec'd
Grievance Identifier
Grievance Facility Category
Step I Received Date
Resolved Partially Denied Rejected Closed Date Mailed Resolved
4/22/2019
DRF-19-03-0576-28I
28I
5
3/6/2019
5/6/2019
Notes:
15
Page 15
5/28/2024
5/28/2024
10/7/2022

16
ECF No. 14-3, PageID.136-140.
As indicated in the records above, all of Plaintiff’s grievances from the relevant
time periods were rejected except for ICF-22-07-0786-12E2 (ICF-0786). 	In the Step
I grievance in ICF-0786, which is shown below, Plaintiff asserted that on July 19,
2022, a morning shift nurse told him he would be seen for ringworm like sores but he
was not seen in a timely manner.
ECF No. 14-3, PageID.156. 	This grievance does not identify Defendant Nielsen.
Thus, in the opinion of the undersigned, ICF-0786 did not exhaust Plaintiff’s
administrative remedies regarding his claims against Nielsen.
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In his Complaint, Hernandez asserts that he filed a grievance regarding his
claims against Defendant Nielsen on September 19, 2024. 	ECF No. 1, PageID.7.
Hernandez’s Step III Grievance Report, ECF No. 14-3, PageID.136-140, lists a
grievance filed at Step I at ICF on September 26, 2024. 	That grievance is ICF-24-
09-1093-28B (ICF-1093). 	Id., PageID.137. 	The grievance records provided by
Defendant include Hernandez’s Step I grievance, Steps II and III appeals, and all
MDOC responses for ICF-1093. 	Id., PageID.141-48. 	The records before the Court
show that Plaintiff’s Step I grievance in ICF-1093 was rejected and the rejection was
upheld through Step III. 	See id., PageID.145 (Step I response rejecting ICF-1093 as
vague, no attempt to resolve with staff and untimely), PageID.143 (rejection upheld
at Step II by Warden Bonn), PageID.141 (rejection upheld at Step III by Grievance
Manager Richard Russell).
Grievances that are rejected are not reviewed on the merits and thus do not
satisfy the exhaustion requirement. 	ICF-1093 was rejected as “vague, no attempt to
resolve with staff, and untimely.” 	Thus, ICF -1093 was not reviewed on the merits.
Furthermore, 	the 	remaining 	Step 	III 	grievances 	from 	the 	relevant 	timeframe
identified on Plaintiff’s Step III grievance report were also rejected and therefore do
not satisfy the exhaustion requirement.
Accordingly, in the opinion of the undersigned, there are no genuine issues of
material fact as to whether Hernandez exhausted his administrative remedies for his
claims against Quartermaster Nielsen – he did not.
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V. 	Recommendation
In the opinion of the undersigned, Plaintiff’s claims accrued prior to July 25,
2022, are barred by the statute of limitations. 	Additionally, in the opinion of the
undersigned, there are no genuine issues of material fact as to whether Plaintiff
exhausted his administrative remedies for his claims against Defendant Nielsen.
The record before the Court indicates that he did not.
Accordingly, the undersigned respectfully recommends that the Court grant
Defendant Nielsen’s motion to dismiss, or in the alternative, for summary judgment
and dismiss Defendant Nielsen from this case.
If the Court accepts this recommendation, the case will be dismissed.
Dated: 	May 15, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Objections to this Report and Recommendation must be served on opposing parties
and filed with the Clerk of the Court within fourteen (14) days of receipt of this Report
and Recommendation. 	28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); W.D. Mich.
LCivR 72.3(b). 	Failure to file timely objections constitutes a waiver of any further
right to appeal. 	United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 	See also
Thomas v. Arn, 474 U.S. 140 (1985).
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