Wynn #491590 v. Perry et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
KEITH WYNN #491590, 	Case No. 2:24-cv-162
Plaintiff, 	Hon. Robert J. Jonker
U.S. District Judge
v.
PERRY, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendants’ motion for
summary judgment due to Plaintiff’s failure to exhaust his administrative remedies.
(ECF No. 16.)
Plaintiff – state prisoner Keith Wynn – filed a verified civil complaint under
42 U.S.C. § 1983 alleging that Defendants violated his rights under the First, Eighth,
and Fourteenth Amendments while he was a prisoner at the Marquette Branch
Prison (MBP). (ECF No. 1.)
The undersigned issued a screening opinion on February 21, 2025, dismissing
one Defendant (Warden Schroeder) and Plaintiff’s First and Fourteenth Amendment
claims. (ECF Nos. 4, 5.) 	Following that decision, six named Defendants and 15 John
Doe Defendants remained in the case. 	The named Defendants are: 	Sergeant (Sgt.)
Perry, Corrections Officer (CO) John, CO Smith, CO Witherspoon, CO Dunken and
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CO Kent. 	However, at this point, only Perry, Smith and Kent have been served or
filed a waiver of service.
In short, Plaintiff’s complaint alleges that the Defendants punched and kicked
him while he was restrained in handcuffs and in the restraint chair. 	Plaintiff also
asserts that Sgt. Perry tased him during the same incident.
Now, two of the named Defendants – CO Smith1 and CO Kent – move for
summary judgment based on Plaintiff’s failure to exhaust administrative remedies.
They assert that Wynn’s Eighth Amendment excessive force claims against them
should be dismissed because Wynn did not identify either Defendant in a Step I
grievance form. (ECF No.16., PageID.108.)
Wynn did not reply to Defendants’ motion. 	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)).
The undersigned respectfully recommends that the Court grant Kent and
Smith’s motion for summary judgment. The records before the Court establish that
no genuine issue of material fact remains with respect to the issue of Plaintiff’s
exhaustion of his administrative remedies for his claims against them.
1 	Defendants refer to Defendant Smith as Sergeant Smith throughout their
brief. For consistency with Plaintiff’s complaint, the undersigned will refer to
Defendant Smith as Corrections Officer (CO) Smith.
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In addition, a review of the docket indicates that Defendants CO John, CO
Witherspoon, CO Dunken, and “John Does” #1–15 have never been served with a
summons and complaint. 	In the opinion of the undersigned, these Defendants should
be dismissed without prejudice under Fed. R. Civ. P. 4(m).
If the Court adopts these recommendations, then only Wynn’s excessive force
claim against Sgt. Perry will remain.
II. Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
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[2] 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
2 	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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the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
III. 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,
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
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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).
“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
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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).
Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective
September 25, 2023) sets forth the applicable grievance procedures for prisoners in
MDOC custody at the time relevant to this complaint. Inmates must first attempt to
informally resolve a grievable issue within two business days of becoming aware of
the issue, unless prevented by circumstances beyond his or her control. 	Id. at ¶ W.
If informal 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 informal resolution. 	Id. at ¶¶ W, CC. 	The inmate submits the
grievance to a designated Grievance Coordinator, who assigns it to a respondent. Id.
at ¶ CC. 	The 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 ¶ Y (emphasis in original).
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.
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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,
whether a Class I misconduct or a Class II or III misconduct3 , 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.
3 	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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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
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).4
V. Grievances Identified by Defendants
In their motion for summary judgment, Defendants Smith and Kent identify
one grievance that Wynn filed with MDOC. They claim that a review of this grievance
4 	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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will demonstrate that Wynn has failed to exhaust his administrative remedies. This
grievance is summarized below.
Grievance No. 	Person(s)
Named
Allegation 	Date or
Date Range
of
Incident(s)
Results at
Step 1
Results at
Step 2
Results at
Step 3
MBP-24-03-00335
(MBP-33)
Sgt. Perry
and “14
COs”
Wynn asserts that,
during evacuation
in segregation, Sgt
Perry and 14
unidentified COs
took Wynn to the
ground, punched
him, and tased
him 8 times while
in handcuffs.
3-13-2024 	Denied 	Denied 	Denied
VII. Analysis
In their motion for summary judgment, CO Smith and CO Kent argue that
Wynn failed to identify either of them in his Step I grievance for MBP-33, which is
shown below.
5 	The MDOC Step III Grievance Report for Wynn includes two lines for
Grievance MBP-33. MBP-33 was given two grievance category identifiers (26A and
28z). It appears that Wynn submitted two appeal forms for the same grievance. (ECF
No. 16-3, PageID.134.) The MDOC issued Wynn a memorandum explaining that, per
MDOC policy, duplicative grievances may be rejected and MBP-33 was previously
assigned the grievance identifier MBP-24-03-0033-26A. (ECF No. 16-3, PageID.138.)
For purposes of the undersigned’s analysis, both 26A and 28z derive from the same
Step I grievance form. Accordingly, the undersigned considers MBP-33 as a single
grievance.
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(ECF No. 16-3, PageID.135.)6
In MBP-33, Wynn complains about actions by Sgt. Perry and 14 unidentified
COs – 15 total staff members at MBP. 	But in this lawsuit, Wynn alleges excessive
force claims against Sgt. Perry, CO Smith, CO John, CO Witherspoon, CO Dunken,
CO Kent, and “John Doe” COs #1–15 – 21 total Defendants. The logical conclusion
6 	The Step I grievance form lists 3-14-24 as the date of the alleged incident. The
Step I grievance response supplemental form indicates the Wynn wrote the wrong
date on this form and meant to write 3-13-24 as the date of the alleged incident. (ECF
No. 16-3, PageID.136.)
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is that the “John Does” in the present lawsuit are the unidentified COs in Grievance
MBP-33 and that Wynn simply added the named Defendants to the case. Thus, Wynn
did not include Kent and Smith in MBP-33. Wynn did not respond to the summary
judgment motion filed by Smith and Kent, thus no other explanation is before the
Court. 	Accordingly, the undersigned concludes that Wynn has not exhausted his
excessive force claim against Kent and Smith.
VIII. Unserved Defendants
A review of the docket in this case shows that CO John, CO Witherspoon, CO
Dunken, and “John Does” #1–15 have not been served with a summons and
complaint, nor have they waived service. In April 2025, the undersigned ordered the
Clerk of Court to forward Wynn’s complaint to the U.S. Marshals Service, which was
authorized to mail a request for waiver of service to Defendants. 	(ECF No. 9.) 	The
Court’s order also stated that, in the event that waiver of service was unsuccessful,
summons would issue and be forwarded to the U.S. Marshal Service for service. (Id.)
In early June, a waiver of service was returned unexecuted as to these Defendants
(ECF No. 12), and the summons were returned unexecuted because Defendants could
not be identified (ECF No. 13).
In the opinion of the undersigned, Defendants CO John, CO Witherspoon, CO
Dunken, and John Does #1–15 should be dismissed without prejudice under Fed. R.
Civ. P. 4(m). 	Rule 4(m) provides that the Court must, after providing plaintiff with
notice, either dismiss or order service within a specified time frame against a
Defendant who has not been served within 90 days after the complaint was filed.
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Pursuant to this Court’s order dated April 7, 2025 (ECF No. 9), the 90-day period for
service began to run on the date of the order. Accordingly, pursuant to Fed. R. Civ.
P. 4(m), the undersigned respectfully recommends that CO John, CO Witherspoon,
CO Dunken, and John Does #1–15 be dismissed without prejudice.
IX. Recommendation
The undersigned respectfully recommends that the Court grant Defendants’
motion for summary judgment. 	The records before the Court establish that no
genuine issue of material fact remains with respect to the issue of Plaintiff’s
exhaustion of his administrative remedies.
The 	undersigned 	respectfully 	recommends 	that 	this 	Court 	dismiss 	the
following claims:
1. 	Wynn’s claim that CO Smith used excessive force on March 13, 2024.
2. 	Wynn’s claim that CO Kent used excessive force on March 13, 2024.
Additionally, the undersigned recommends that this Court dismiss the
following claims because Defendants could not be served:
1. 	Wynn’s claims that CO John, CO Witherspoon, CO Dunken, and “John Doe”
Defendants #1–15 used excessive force on March 13, 2024.
If the Court adopts this recommendation, the following claims will remain:
1. 	Wynn’s claim that Sgt. Perry used excessive force on March 13, 2024.
Dated: 	October 31, 2025 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
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NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within
fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b). All objections and responses to objections are governed by W.D. Mich. LCivR
72.3(b). Failure to file timely objections may constitute a waiver of any further right
of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn,
474 U.S. 140 (1985).
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