Woodruff #303585 v. Russo

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
BRIAN WOODRUFF, 	Case No. 2:25-cv-30
Plaintiff, 	Hon. Robert J. Jonker
U.S. District Judge
v.
DANYA RUSSO,
Defendant.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses the following:
 	Defendant’s motion for summary judgment, ECF No. 26;
 	Defendant’s 	motion 	to 	enforce 	Case 	Management 	Order, 	motion 	for
summary judgment, and motion to dismiss for lack of prosecution, ECF No.
30;
 	Defendant’s second motion to enforce court order and motion to dismiss for
lack of prosecution, ECF No. 32; and
 	Defendant’s third motion to enforce court order and motion to dismiss for
failure to prosecute, ECF No. 33.
Plaintiff has not responded to any of Defendant’s motions.
Plaintiff – state prisoner Brian Woodruff – filed an unverified civil complaint
under 	42 	U.S.C. 	§ 1983 	alleging 	that 	Defendant 	Dr. 	Russo 	was 	deliberately
indifferent to his serious medical needs, in violation of his rights under the Eighth
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Amendment, while he was a prisoner at Chippewa Correctional Facility (URF). ECF
No. 1.
More specifically, Woodruff states that he has received treatment for a pinched
nerve in his upper neck for 16-17 years. 	Id., PageID.3. 	He says he was diagnosed
with degenerative arthritis of the cervical spine. Id. Woodruff claims that when he
arrived at URF in August 2023, Dr. Russo stopped all treatment for his condition. Id.
Woodruff asserts that he suffers from physical and mental pain due to Dr. Russo’s
refusal to continue treatment. Id.
Defendant Dr. Russo asserts that Woodruff’s case should be dismissed because
Woodruff has failed to respond to Defendants’ motions or otherwise participate in this
action. ECF Nos. 30, 32, & 33. Alternatively, Dr. Russo argues that the case should
be dismissed because the only relevant grievance was rejected as untimely and the
rejection was upheld through Step III. ECF No. 27, PageID.230.
First, 	the 	undersigned 	respectfully 	recommends 	that 	the 	Court 	deny
Defendant’s motions to enforce the court order and motions to dismiss for failure to
prosecute. ECF Nos. 30, 32, & 33. In the opinion of the undersigned, Defendant has
not identified sufficient grounds to dismiss the case on this basis alone.
Next, 	the 	undersigned 	respectfully 	recommends 	that 	the 	Court 	grant
Defendant’s motion for summary judgment. 	ECF No. 27. 	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.
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II. Motion to Dismiss
First, the undersigned considers Defendant’s motions to dismiss for Plaintiff’s
failure to prosecute. ECF Nos. 30, 32, & 33.
Federal Rule of Civil Procedure 41(b) states that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b).
Here, Dr. Russo argues that Plaintiff’s case should be dismissed for failure to
prosecute because Plaintiff has not responded to Defendant’s motion for summary
judgment and has not otherwise participated in the litigation. The Case Management
Order (CMO) provides that the parties are to comply with the briefing schedule in
Local Civil Rule 7.2, but Plaintiff is not required to respond to Defendant’s motion.
Dr. Russo is correct in her assertion that the local rules allow 28 days after
service for a response to a motion for summary judgment. W.D. Mich. LCivR 7.2(c).
However, Plaintiff is not required to file a response to Defendant’s motion for
summary judgment. 	In fact, the Sixth Circuit has stated that when a 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)). 	Thus, a failure to
respond is not automatic grounds for dismissal.
Accordingly, the undersigned respectfully recommends that the Court deny
Defendant’s motions to dismiss for failure to prosecute. ECF Nos. 30, 32, & 33.
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III. Summary Judgment Standard
Next, the undersigned turns to Defendant’s motion for summary judgment for
Plaintiff’s failure to exhaust administrative remedies. ECF No. 26.
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[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).
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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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
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).
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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
furthers 	the 	additional 	goals 	of 	limiting 	judicial 	interference 	with 	prison
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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 (emphasis added). 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).
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. 	MDOC Policy Directive 03.02.130 at ¶¶ JJ. 	The respondent
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at Step II is designated by the policy, e.g., the regional health administrator for
medical care grievances. Id. at ¶ LL.
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 ¶¶ NN. 	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 Section is the
respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ OO.
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
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example, where an inmate claims that he received a retaliatory false misconduct,
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.
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
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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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
IV. Analysis
Dr. Russo includes Woodruff’s MDOC Step III Grievance Report for the
relevant timeframe:
ECF No. 28-2, PageID.249.
The only grievance identified on the Step III grievance report is URF-23-12-
2186-28E (hereinafter URF-2186). Dr. Russo includes the following rejection letters
for URF-2186 indicating that this grievance was untimely at each stage of the
grievance process.
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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Id., PageID.254.
Id., PageID.252.
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Id., PageID.250.
Grievances that are rejected are not reviewed on the merits and thus do not
satisfy the exhaustion requirement. URF-2186 was rejected for untimely filing. That
rejection was upheld through Step III. 	Therefore, URF-2186 fails to exhaust
Woodruff’s claims against Dr. Russo.
Accordingly, in the opinion of the undersigned, there are no genuine issues of
material fact as to whether Woodruff exhausted his administrative remedies for his
claim against Dr. Russo – he did not.
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VIII. Recommendation
For the reasons stated above, the undersigned respectfully recommends that
the Court deny Defendant’s motions to dismiss for failure to prosecute ECF Nos. 30,
32, & 33, and grant Defendant’s motion for summary judgment based on Plaintiff’s
failure to exhaust his administrative remedies, ECF No. 26.
The records before the Cour establish that no genuine issue of material fact
remains with respect to the issue of Plaintiff’s exhaustion of his administrative
remedies. 	Accordingly, the undersigned respectfully recommends that this Court
dismiss Woodruff’s Eighth Amendment deliberate indifference claim against Dr.
Russo. If the Court adopts this recommendation, no claims will remain in this case.
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).
Dated: 	April 28, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
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