Delaney #671563 v. Allen et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BRASHARD DELANEY #671563,
Plaintiff, 	Hon. Hala Y. Jarbou
v. 	Case No. 2:25-cv-182
WAYNE ALLEN, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me on Defendant Allen’s Motion for Summary Judgment (ECF No.
20) and Defendant Voeks’s Motion for Summary Judgment (ECF No. 29), both raising the
affirmative defense of failure to exhaust administrative remedies. Plaintiff filed a response to
Defendant Allen’s motion (ECF No. 23), to which Defendant Allen did not reply. Plaintiff failed
to file a timely response to Defendant Voeks’s motion, although the affidavit he submitted in
response to Defendant Allen’s motion addresses the exhaustion issue Defendant Voeks raises.
Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that both motions be DENIED.
I. 	Background
Plaintiff, a prisoner currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Marquette Branch Prison (MBP), filed a complaint pursuant to 42 U.S.C. § 1983
on July 30, 2025, against several MDOC employees based on events that occurred at MBP on
August 30, 2024. (ECF No. 1.) 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 Plaintiff’s Eighth
Amendment excessive force claims against Defendants Allen and John Doe #1, his Eighth
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Amendment medical care claims against Defendants Allen and Voeks, and his state law claims to
proceed.1 (ECF No. 7 at PageID.54.)
The Court previously summarized Plaintiff’s allegations as follows:
Plaintiff alleges that he was moved to MBP after assaulting a staff member at
another facility. [Compl., ECF No. 1, PageID.6.] He also explains that he is diabetic
and, at the time of his transfer to MBP on August 30, 2024, at approximately 10:15
p.m. to 10:30 p.m., had not eaten for the day. (Id.)
Upon arriving at MBP, Plaintiff told a non-party nurse that he needed to see
healthcare because he is diabetic and believed his sugar to be low. (Id.) He was then
strip searched by Defendant Allen and non-party Sergeant Baldini. (Id.) During the
search, Defendant Allen told Plaintiff, “You[’re] in for a world hell here boy. . .
Nurkala told us everything.” (Id.) Plaintiff describes Nurkala as the Resident Unit
Manager at the facility where Plaintiff had assaulted a staff member. (Id.) Plaintiff
ignored Defendant Allen’s comment and was taken to healthcare. (Id., PageID.7.)
While in healthcare, Defendant John Doe #1 and non-party John Doe #5 entered
the room. (Id.) A non-party nurse showed Plaintiff his blood glucose reading and
told Defendant Allen, “He needs a snack bag. He’s high risk and could go into a
diabetic coma in his sleep.” (Id.) Defendant Allen sad, “OK, I’ll make sure he gets
one.” (Id.)
Shortly thereafter, while Plaintiff was being led out of healthcare to his housing
unit, Defendant John Doe #1 stated, “Are we really going to get him a snack bag
after he assaulted a C/O?” (Id., PageID.8.) Defendant Allen didn’t respond verbally.
(Id.) Defendant John Doe #1 asked Plaintiff, “So, how dangerous are you?” (Id.)
Plaintiff responded, “I’m not dangerous at all.” (Id.) Plaintiff in turn asked
Defendant John Doe #1, “How dangerous are you?” (Id.) To which Defendant John
Doe #1 replied, “I’m about to show you!” (Id.) Defendant John Doe #1 then
grabbed Plaintiff by his hair and yanked it three or four times so hard that Plaintiff’s
dreadlocks were torn from his head at the root. (Id.) Defendant Allen did not
intervene. (Id.) Defendant John Doe #1 referenced Plaintiff’s attack on another
corrections officer before also kicking Plaintiff in the ankle. (Id., PageID.9.)
Following Defendant John Doe #1’s actions, Plaintiff asked Defendant Allen,
“[T]hat’s the second time he assaulted me[.] You[’re] not going to say anything?”
(Id.) Defendant Allen did not respond. (Id.)
1 Plaintiff initially identified Defendant Voeks as Unknown Howie. (ECF No. 1.) Plaintiff
subsequently amended his complaint to correctly identify Unknown Howie as Defendant Voeks.
(ECF No. 18.)
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Upon arriving at Plaintiff’s cell, Plaintiff asked Defendant Allen, “Are you just
going to let me get assaulted twice?” (Id.) Defendant Allen responded, “Shut the
f*** up crying.” (Id.)
Approximately thirty minutes later, Defendant [Voeks] brought Plaintiff sheets.
(Id., PageID.9–10.) Plaintiff told Defendant [Voeks] that he was a diabetic with low
blood sugar and needed a snack bag. (Id., PageID.10.) Defendant [Voeks]
responded, “I know the nurse already told Sgt. Allen.” (Id.) Approximately thirty
minutes later, Defendant [Voeks] returned to Plaintiff’s cell with two brown paper
bags filled with hygiene items. (Id.) Plaintiff stated, “[t]his is not a snack bag.” (Id.)
Defendant Howie replied, “[H]e told you we was dangerous.” (Id.)
(Id. at PageID.6–7.)
Defendants Allen and Voeks now seek summary judgment on the basis that Plaintiff failed
to exhaust his administrative remedies on his claims against them.
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.
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
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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
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
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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 issue 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
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.
In support of their motions, Defendants Allen and Voeks submit a Step III Grievance
Report for Plaintiff dated September 17, 2025, which shows the grievances arising out of MBP
that Plaintiff filed at Step I in August or September 2024 and exhausted through Step III prior to
filing this action.2 (ECF No. 21-3.) Defendants note that the Step III Report shows that Plaintiff
filed one grievance at Step I during this time, MBP-24-10-1056-28e, which was rejected at all
three steps of the grievance process. (ECF No. 21 at PageID.94.) Defendants contend that this
2 Defendant Voeks did not file separate exhibits in support of his motion but instead adopted by
reference the Step III Report that Defendant Allen filed with his motion. (ECF No. 30 at
PageID.156.)
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grievance could not have exhausted Plaintiff’s claims against them based on their alleged conduct
on August 30, 2024, because it: (1) was rejected as untimely; (2) concerned an incident that
occurred on September 22, 2024; and (3) did not name either Defendant Allen or Defendant Voeks.
(Id. at 101 (citing ECF No. 21-3 at PageID.126.)
Plaintiff does not dispute Defendants’ assertion that MBP-24-10-1056-28e did not exhaust
his claims, and he does not claim that he exhausted a grievance raising his claims against
Defendants through all three steps of the grievance process. In fact, in his response, Plaintiff simply
requests that the Court stay Defendants’ motions for summary judgment and allow him to take
discovery, not on the issue of exhaustion, but on the merits of his claims. (ECF No. 23 at
PageID.132–33.) Nonetheless, Plaintiff references his affidavit attached to his motion. (Id. at
PageID.132–33.)
In his affidavit, Plaintiff sets forth his efforts to exhaust his claims against Defendants
concerning the August 30, 2024 incidents and the lack of response to his grievances. Plaintiff
alleges that on September 4, 2024, he gave a step I grievance to RUM Moyale in an envelope
addressed to Inspector Michael Leach. (ECF No. 24 at PageID.136.) Plaintiff further claims that
he sent Grievance Coordinator Q. Bolton and Inspector Leach “numerous kites” inquiring whether
they had received Plaintiff’s grievances but received no response. (Id.) Plaintiff further claims that
on September 19, 2024, he gave RUM Moyale the same Step I grievances during legal mail rounds
in a sealed envelope addressed to Grievance Coordinator Q. Bolton, along with a note requesting
that Bolton respond with a grievance receipt so that Plaintiff could confirm that the grievance was
received. (Id.) Plaintiff alleges that he gave RUM Moyale the same Step I grievances again on
September 24 and October 10, 2024. (Id. at PageID.136–37.) Plaintiff claims that on October 24,
2025, he turned in his goldenrod copy of the grievance concerning the August 30 incidents to RUM
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Moyale and that on October 28, 2024, he received a Step I grievance in the mail and learned that
the grievance office had not received any of his grievances. (Id. at PageID.137.) Plaintiff alleges
that on October 31, 2024, he placed his legal mail individually in the bars of his cell “piece by
piece,” and that when RUM Moyale asked him why he had arranged his mail like that, he told her
that Grievance Coordinator Bolton sent him a response stating that he had received only “one
grievance and no kites” from Plaintiff. (Id. at PageID.137–38.) RUM Moyale asked, “Who did
you give your grievances to[]?” Plaintiff responded, “You.” Moyale then told Plaintiff that she had
put all of his mail in the mailbox. (Id. at PageID.138.) Plaintiff states that he “can only conclude
that [his] grievances, kites, [and] mail was destroyed.” (Id.)
Plaintiff’s response to the present motions is essentially that the grievance process was
unavailable to him. In Ross v. Blake, 578 U.S. 632 (2016), the Supreme Court observed that a
grievance process is unavailable where, among other things, “it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at
643. The Court noted that exhaustion is not required “when prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id. at 644; see also id. at 644 n.3.
Defendants fail to address Plaintiff’s affidavit or explain why it is insufficient to create a
genuine issue of material fact as to whether the grievance process was available to Plaintiff or why
the Court may not consider the affidavit in deciding their motions. Because Plaintiff’s affidavit
creates a genuine issue of material fact as to whether the grievance process was available to
Plaintiff, Defendants fail to carry their summary judgment burden, and their motions should be
denied.
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IV. 	Conclusion
For the foregoing reasons, I recommend that the Court deny Defendants’ motions for
summary judgment.
Dated: March 23, 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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