Delaney #671563 v. Schroeder et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BRASHARD DELANEY #671563,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 2:25-cv-75
SARAH SCHROEDER, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me on Defendant Zampese’s Motion to Dismiss for Failure to State a
Claim asserting the affirmative defense of failure to exhaust. (ECF No. 38.) Plaintiff has failed to
respond to the motion within the time permitted by Western District of Michigan Local Civil Rule
7.2(c). 1 Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the Court grant the motion,
dismiss Plaintiff’s remaining claims without prejudice for lack of exhaustion, and terminate this
action.
I. 	Background
Plaintiff, who is currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Marquette Branch Prison (MBP), filed a complaint against several MDOC
employees on April 16, 2025, alleging claims pursuant to 42 U.S.C. § 1983 based on events that
1 Although Plaintiff is proceeding pro se, he is still expected to comply with the applicable court
rules. See Strohmeyer v. Chase Bank USA, N.A., No. 3:17-cv-443, 2018 WL 2669991, at *2 (E.D.
Tenn. June 4, 2018) (“It is correct that pro se parties are expected to comply with the rules of
procedure just as parties represented by counsel must do.”); Jones v. Graley, No. 2:05-cv-773,
2006 WL 1697637, at *1 (S.D. Ohio June 20, 2006) (although federal courts have treated pro se
litigants more leniently, they “are still expected to comply with the procedural rules of the court”).
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occurred at MBP from January to March 2025.2 Following the Court’s initial review pursuant to
28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c), Plaintiff’s remaining claims are his
First Amendment retaliation and interference-with-mail claims against Defendant Zampese in his
individual capacity.3 (ECF No. 17 at PageID.120.)
As to Defendant Zampese, Plaintiff alleges on March 18, 2025, he sent kites to dismissed-
Defendants Schroeder and Leach and non-party Assistant Deputy Warden James complaining that
Zampese had been passing out his mail to the wrong prisoners. (ECF No. 1 at PageID.6.) Plaintiff
further alleges that on March 25, 2025, Defendant Zampese retaliated against Plaintiff by giving
his mail, which included photographs of Plaintiff’s toddler, to another prisoner convicted of
criminal sexual misconduct. Plaintiff alleges that Defendant Zampese had observed Plaintiff
engage in verbal altercations with this prisoner in the past. (Id. at PageID.7.) Plaintiff claims that
a witness attempted to return Plaintiff’s mail to Defendant Zampese, who referenced Plaintiff’s
grievance activity and told the witness to tell Plaintiff to “go write a grievance.” (ECF No. 12 at
PageID.65–66.)
II. 	Motion Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right to relief above the speculative level on the assumption that all of the complaint's
allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citations
and footnote omitted). As the Supreme Court has held, to satisfy this rule, a complaint must contain
2 The filing date is based on the prison “mailbox rule,” pursuant to which a prisoner civil rights
lawsuit is deemed filed when the prisoner signs the complaint and deposits it in the prison mail
system. See Scott v. Evans, 116 F. App’x 699, 701 (6th Cir. 2004).
3 Plaintiff misidentified Defendant Zampese in his complaint as Zanpeeze. (ECF No. 1.)
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“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility
standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. If the complaint simply “pleads facts that are merely
consistent with a defendant's liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (internal quotation marks omitted). As the Court further observed:
Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Rule 8 marks a
notable and generous departure from the hyper-technical, code-pleading regime of
a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not “show[n]”—“that the pleader is entitled to relief.”
Id. at 678–79 (internal citations omitted).
Generally, an affirmative defense must be raised by summary judgment. However, if the
allegations in a complaint show that relief is barred by an affirmative defense, the complaint is
subject to dismissal for failure to state a claim upon which relief may be granted. Jones v. Bock,
549 U.S. 199, 215 (2007); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012); see also
Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Jones and holding that if, on the face
of a complaint, the allegations show that relief is barred by an affirmative defense (lack of
exhaustion), the complaint is subject to dismissal for failure to state a claim).
III. 	Discussion
It is well established that failure to exhaust administrative remedies is an affirmative
defense. Jones, 549 U.S. at 212–13. The Supreme Court has held that a prisoner properly exhausts
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a claim for purposes of 42 U.S.C. § 1997e(a) by complying with the prison’s “deadlines and other
critical procedural rules.” 	Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). In Jones, 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.
Jones, 549 U.S. at 218. A prisoner incarcerated with the MDOC must “pursue a grievance through
all three steps of the grievance process [set forth in MDOC Policy Directive 03.02.130].”
Weatherspoon v. Strahan, No. 18-2210, 2019 WL 5306842, at *1 (6th Cir. June 4, 2019). This
process must be completed at all levels prior to filing an action in federal court. Freeman v.
Francis, 196 F.3d 641, 645 (6th Cir. 1999).
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 10/21/2024). 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
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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
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.
Defendant Zampese contends that it is clear from the face of Plaintiff’s complaint that he
could not have possibly completed the MDOC’s three-step grievance process before filing his
complaint. The only factual allegations against Defendant Zampese occurred on March 18 and 25,
2025, and Plaintiff signed his complaint on April 16, 2025. Defendant Zampese notes that under
the policy, Plaintiff had two business days to resolve the issue with staff and five business days
thereafter to file his Step I grievance, and the respondent had 15 business days to respond, resulting
in a date of April 17, 2025 for the Step I response, one day after Plaintiff signed his complaint.
(ECF No. 39 at PageID.200–01.) A Step II appeal likely would have consumed the same amount
of time (ten business days to file and fifteen business days for a response), and a Step III appeal
likely would have taken even longer to complete (ten business days to file and sixty business days
for a response). Mich. Dep’t of Corr. Policy Directive 03.02.130 ¶¶ JJ, OO. Having failed to
respond, Plaintiff does not contest his failure to exhaust.
It is well established that a plaintiff’s failure to respond to a motion to dismiss constitutes
a forfeiture of the claims to which the motion is addressed. See Notredan, L.L.C. v. Old Republic
Exchange Facilitator Co., 531 F. App’x 567, 569 (6th Cir. 2013) (stating that failure to respond to
an argument that a claim is subject to dismissal “amounts to a forfeiture of [such] claim”).
Likewise, opposition to a motion to dismiss is waived, and dismissal appropriate, where the
plaintiff fails to respond to the motion. See Humphrey v. United States Attorney Gen.’s Office, 279
F. App’x 328, 331 (6th Cir. 2008) (stating that “if a plaintiff fails to respond or otherwise oppose
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a defendant’s motion, then the district court may deem the plaintiff to have waived opposition to
the motion”); Allen v. NCL America LLC, 741 F. App’x 292, 295-96 (6th Cir. 2018) (holding that
the plaintiff’s failure to respond to a motion to dismiss amounted to a waiver of the plaintiff’s
opposition to the motion); Moody v. CitiMortgage, Inc., 32 F. Supp. 3d 869, 875 (W.D. Mich.
2014) (stating that “[a] plaintiff must oppose a defendant’s motion to dismiss or otherwise respond
or he waives opposition to the motion”). Thus, Plaintiff has forfeited or waived any opposition he
may have had to the motion, and dismissal is proper on this ground. 4
4 Both experience and common sense suggest that Plaintiff could not have possibly exhausted his
claims before filing his complaint in this action. Completing all three steps of the exhaustion
process within 29 calendar days would amount to warp speed for a prison system as large as the
MDOC managing tens of thousands of prisoners and processing hundreds, if not thousands, of
grievances per month. The policy itself contemplates a much longer time.
Nonetheless, whether failure to exhaust clearly appeared on the face of Plaintiff’s complaint—an
issue Plaintiff chose not to contest—is close. Defendant’s argument relies on deadlines set forth in
the policy rather than hard dates. For example, it is possible, even if unlikely, that Plaintiff sought
to resolve the issue and submitted his grievance both on the same day the incident occurred; that
the grievance was logged the following day and that the respondent, having nothing else to do,
investigated it and issued the response that day or the next. One can imagine similar patterns for
Steps II and III. The cases Defendant cites support the notion that lack of exhaustion can be raised
on a motion to dismiss, but they presented different circumstances. See Bonga v. Abdellatif, No.
2:16-CV-13685, 2017 WL 6276194 (E.D. Mich. Dec. 11, 2017), adopted by 2018 WL 1312403
(E.D. Mich. Mar. 14, 2018) (the plaintiff admitted he had yet to exhaust his proposed claims in his
amended complaint); Proctor v. Applegate, 661 F. Supp. 2d 743, 774 (E.D. Mich. 2009) (the
plaintiffs’ allegation that they sought a declaratory ruling from the warden under the Michigan
Administrative Code instead of using the grievance procedure showed that the plaintiffs failed to
exhaust particular paragraphs of their complaint); Spaulding v. Oakland Cnty. Jail Med. Staff, No.
4:07-CV-12727, 2007 WL 2336216, at *2 (E.D. Mich. Aug. 15, 2007) (“Plaintiff admits in his
complaint that he never filed any grievances relative to this matter because he ‘never could obtain
one.’”). And while Defendant states that Handsome v. Sexton, No. 2:24-CV-10948, 2025 WL
825079 (E.D. Mich. Jan. 28, 2025), adopted by 2025 WL 823866 (E.D. Mich. Mar. 14, 2025),
“involved a timeline essentially identical to this one,” (ECF No. 39 at PageID.201), they admit
that the matter was decided on summary judgment, and the docket in that case shows that the
defendant supported the motion with the plaintiff’s Step III Grievance Report. All of this is to say
that, with the exception of cases presenting extremely brief periods between the incident and the
complaint filing date (a few days, perhaps a week at most), a summary judgment motion with
evidentiary support remains the more appropriate way to raise lack of exhaustion where the
plaintiff does not make detrimental admissions in his complaint.
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IV. 	Conclusion
For the foregoing reasons, I recommend that the Court grant Defendant Zampese’s motion
to dismiss (ECF No. 38), dismiss without prejudice Plaintiff’s claims against him, and terminate
this matter.
Dated: March 2, 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).
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