Crump #236528 v. Blue et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HORACE W. CRUMP #236528,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 1:23-cv-1353
LORI BLUE, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me on MDOC Defendants Mikel, Riley, LaMontagne, and Brawley’s
corrected Motion for Summary Judgment raising lack of exhaustion. (ECF No. 60.) The motion is
fully briefed and ready for decision. Because Crump’s claims against Defendants Mikel, Groff,
Riley, LaMontagne, and Brawley added by his amended complaint have not been reviewed
pursuant to either 28 U.S.C. §§ 1915(e)(2) or § 1915A(b)(1), I do so now before considering
Defendants’ exhaustion motion and recommend that they be DISMISSED for failure to state a
claim. I then address Defendants’ exhaustion motion and recommend, as alternative grounds for
dismissal, that certain claims be DISMISSED as unexhausted.
I. 	Background
In a previous Report and Recommendation issued on September 22, 2025, I recommended
that the Court dismiss Crump’s unexhausted claims against Defendants Blue, Mikel, and Shaw.
(ECF No. 48.) The Court adopted that Report and Recommendation on October 20, 2025. (ECF
No. 55.) Consequently, only Crump’s Eighth Amendment claim against Defendant Groff
regarding her delay in ordering Baclofen remained.
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On September 22, 2025, I granted Crump’s motion for leave to amend his complaint to,
among other things, add new claims against existing Defendants Mikel and Groff and add
Defendants Corrections Officer (CO) Todd Riley, Inspector Jason LaMontagne, and Hearing
Investigator (HI) John Brawley. (ECF No. 49.)
Crump’s new claims are as follows.
A. 	CO Riley
On November 2, 2023, Crump went to use the email kiosk but an aide forbade him from
doing so. Crump explained this and other violations to RUM Shaw, but Shaw was condescending
and allowed new unit officer CO Riley to degrade and belittle Crump. During this exchange, Riley
“yelled out so that the whole side could hear, ‘You want me to fire all of them?’” Crump claims
that CO Riley made the comment intending to suggest that Crump’s insistence on compliance with
policy “made him a rat or an informant.” (ECF No. 50 at PageID.385.) Crump claims that Riley
called him “childish” and told him he was “acting like a child,” which was degrading language
that violated MDOC policy. (Id. at PageID.383, 385.) Riley then made comments to Shaw about
moving Crump (although he did not say where), which he knew would be detrimental to his health.
(Id.) That same day, Crump kited HUM Mikel complaining that he had not had any mandated
assistance and asking what his restrictions meant. (Id. at PageID.383.) On November 6, 2023,
Crump fell while attempting to mop, injuring his hand and knee, which had just been repaired, and
resulting in pain and a seizure “coming for hours.” (Id. at PageID.383, 385.) Crump claims that
this fall occurred because Riley’s comments suggested to aides that Crump did not need the
assistance mandated by his detail. (Id. at PageID.385.) Crump further claims that, due to Riley’s
comments, he “went without ordered medical assistance, was threatened, repeatedly injured
himself, and was moved from Special Needs.” (Id.)
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B. 	Mikel and NP Groff
Crump alleges that on February 8, 2024, HUM Mikel and NP Groff “medically approved”
moving him out of the Special Needs unit and into general population where, he claims, it was
known or foreseeable that he would not receive any assistance. Crump claims that in order to
facilitate the transfer, “these QHP’s falsified [his] medical records” by stating that Crump had
“continued to improve” since transferring to LCF, which was not true. Crump claims that
following the move, he was not assigned “Attendant Assist,” was told he would have to work,
could not navigate the unit and was bumping into other prisoners and objects and knocking things
over, and could not clean his area. Crump alleges that in general population, he had a relapse or a
seizure and was left unattended because other prisoners thought that he was high. (Id. at
PageID.385–87.)
C. 	Inspector LaMontagne and HI Brawley
Crump alleges that he fell in health care on February 28, 2024, but Defendant LaMontagne
ordered him to walk “100+ yards back to the GP unit in the dark evening and blinding snow”
without assistance or a temporary wheelchair. Crump alleges that LaMontagne had been told that
he had fallen and hit his head and that nurses were attempting to resolve his accommodations with
general population, but LaMontagne said that he “did not ‘give a shit’” about Crump’s medical
detail or disabilities and that Crump had to follow his order. When Crump told Inspector
LaMontagne that he could not follow his order due to his inability to see and difficulty walking,
LaMontagne issued Crump a Class II misconduct for disobeying a direct order, which he
immediately elevated to a Class I misconduct, and had Crump taken to segregation. (Id. at
PageID.387.) Crump alleges that on February 29, 2024, he told HI Brawley why he wanted his
medical detail for the hearing and that Brawley told him he should not have been issued a
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misconduct and should be found “not guilty.” However, Crump says Brawley falsified the
screening and investigation report by writing that Crump had said, “I’m [g]uilty,” and indicating
that Crump had not requested any documents. As a result, Crump was found guilty on the
misconduct on March 5, 2024. (Id.)
II. 	Analysis
A. 	Failure to State a Claim
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
“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
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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).
When evaluating a complaint under Rule 12(b)(6), a court may consider the complaint and
any exhibits attached thereto, public records, and items appearing in the record of the case. See
Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008); see also, Continental Identification Prods.,
Inc. v. EnterMarket, Corp., No. 1:07-CV-402, 2008 WL 51610 at *1, n.1 (W.D. Mich. Jan. 2,
2008) (stating that “an exhibit to a pleading is considered a part of the pleading,” and “the Court
may properly consider the exhibits . . . in determining whether the complaint fail[s] to state a claim
upon which relief may be granted without converting the motion to a Rule 56 motion”).
1. 	CO Riley
I construe Crump’s allegations against CO Riley as asserting claims for: (1) verbal
harassment in violation of the Eighth Amendment; and (2) retaliation in violation of the First
Amendment.
a. 	Verbal Harassment
The use of harassing or degrading language by a prison official, although unprofessional
and deplorable, does not rise to constitutional dimensions. See Ivey v. Wilson, 832 F.2d 950, 954–
55 (6th Cir. 1987); see also Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (holding that
harassment and verbal abuse do not constitute the type of infliction of pain that the Eighth
Amendment prohibits); Wingo v. Tenn. Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012)
(noting that “[v]erbal harassment or idle threats by a state actor do not create a constitutional
violation and are insufficient to support a section 1983 claim for relief” (citing Ivey, 832 F.2d at
955)); Miller v. Wertanen, 109 F. App’x 64, 65 (6th Cir. 2004) (affirming district court’s
conclusion that verbal harassment in the form of a threatened sexual assault “was not punishment
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that violated Miller’s constitutional rights” (citing Ivey, 832 F.2d at 955)); Murray v. U.S. Bureau
of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (“Although we do not
condone the alleged statements, the Eighth Amendment does not afford us the power to correct
every action, statement, or attitude of a prison official with which we might disagree.”).
Accordingly, any intended Eighth Amendment claim premised upon Riley’s alleged “degrading
language” should be dismissed.
b. 	Retaliation
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the
Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to
set forth a First Amendment retaliation claim, a plaintiff must establish three elements: (1) he was
engaged in protected conduct; (2) an adverse action was taken against him that would deter a
person of ordinary firmness from engaging in that conduct; and (3) the adverse action was
motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove
that the exercise of the protected right was a substantial or motivating factor in the defendant’s
alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing
Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Crump’s theory seems to be that his act of complaining to RUM Shaw and Riley about the
kiosk incident and other unidentified medical violations was protected conduct and that Riley’s
loud statement, “You want me to fire all of them?” amounted to adverse action, which translated
into injury when Crump fell on November 6, 2023, due to aides refusing to provide him assistance.
Crump can establish the first element of a retaliation claim, as the Sixth Circuit has held
that oral complaints can constitute protected conduct. Maben v. Thelen, 887 F.3d 252, 265 (6th
Cir. 2018) (“An inmate has a right to file ‘non-frivolous’ grievances against prison officials on his
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own behalf, whether written or oral.”) (citation omitted); accord, Brown v. Gray, No. 21-3386,
2022 WL 961246, at *3 (6th Cir. Mar. 28, 2022).
The second and third elements are more problematic. To establish the second element of a
retaliation claim, a prisoner-plaintiff must show adverse action by a prison official sufficient to
deter a person of ordinary firmness from exercising his constitutional rights. Thaddeus-X, 175 F.3d
at 396. The adverseness inquiry is an objective one and does not depend on how a particular
plaintiff reacted. The relevant question is whether the defendant’s conduct is “capable of deterring
a person of ordinary firmness;” the plaintiff need not show actual deterrence. Bell v. Johnson, 308
F.3d 594, 606 (6th Cir. 2002) (emphasis in original).
Riley’s alleged statement, by itself, would not suffice to deter a person of ordinary firmness
from engaging in protected activity. In context, it was nothing more than a sarcastic comment in
response to Crump’s complaints. Certainly, it does not equate to calling a prisoner a “rat” or a
“snitch” in front of other prisoners, as those well-known terms in the prison setting imply that an
individual is an informant. See Ball v. Evers, No. 19-10315, 2021 WL 3164273, at *9 (E.D. Mich.
July 27, 2021) (“It doesn’t take much to conclude that calling a prisoner a snitch in the open and
in front of other inmates certainly can be ‘consequential.’ It is widely understood that prisoners do
not take kindly to those who report others to authorities.”). No prisoner could reasonably believe
that Crump possessed such influence or authority over Riley that his complaints could bring about
the firing of all prisoner aides. But even assuming that Riley’s comment could be considered an
adverse action if made in front of prisoner aides, his factual allegations on this score are wholly
lacking. Crump alleges that Riley yelled loud enough so that the “whole side could hear,” (ECF
No. 50 at PageID.385), but he does not allege that any prisoner aide was present on that “side” and
did hear the comment.
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The third element requires a motivational link between the first and second elements. It is
well recognized that “retaliation” is easy to allege and that it can seldom be demonstrated by direct
evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d
106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of retaliation is insufficient.”
Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material
facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting
Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)); see also Murray v. Unknown Evert,
84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to 28 U.S.C. § 1915A,
“[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to
raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis v. Jarvie, 20 F. App’x
457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not enough to
establish retaliation claims” that will survive § 1915A screening) (citing Crawford-El v. Britton,
523 U.S. 574, 588 (1998)).
Here, Crump simply alleges the ultimate fact of retaliation by Defendant Riley. Crump
cites no fact in support of his assertion that Riley acted with retaliatory motive. Moreover, Crump’s
allegation that he fell four days after this conversation with Riley due to lack of assistance from
prisoner aides is of no moment. In his amended complaint, Crump alleges that on November 2,
2023, he kited HUM Mikel explaining that he had not been receiving prisoner assistance. (ECF
No. 1 at PageID.49.) In fact, the kite Crump cites complains about not receiving “any mandated
assistance in months or never because prisoner ‘aides’ medical opinion is I don’t need it and
whatever they say goes with A-unit and medical staff.” (ECF No 1-2 at PageID.31 (italics added).)
Thus, Crump’s own statements refute the lack of any causal connection between Riley’s November
2, 2023 statement and lack of assistance from prisoner aides four days later. Accordingly,
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Plaintiff’s conclusory allegation of a retaliatory motive falls short, and this claim should be
dismissed.1
2. 	Mikel and Groff
I construe Crump’s claim about HUM Mikel and N.P. Groff’s decision to move Crump
from the Special Needs Unit to general population as an Eighth Amendment deliberate indifference
to medical need claim.
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component,
the plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words,
the inmate must show that he is incarcerated under conditions posing a substantial risk of serious
harm. Id. The objective component of the adequate medical care test is satisfied “[w]here the
seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004); see also Phillips v. Roane Cnty., 534 F.3d
531, 539–40 (6th Cir. 2008). Obviousness, however, is not strictly limited to what is detectable to
the eye. Even if the layman cannot see the medical need, a condition may be obviously medically
serious where a layman, if informed of the true medical situation, would deem the need for medical
attention clear. See, e.g., Rouster v. Saginaw Cnty., 749 F.3d 437, 446–51 (6th Cir. 2014) (holding
that a prisoner who died from a perforated duodenum exhibited an “objectively serious need for
medical treatment,” even though his symptoms appeared to the medical staff at the time to be
consistent with alcohol withdrawal); Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005)
(holding that prisoner’s severed tendon was a “quite obvious” medical need, since “any lay person
1 To the extent Crump’s allegations can be construed as a medical interference claim, such claim
would fail for the same reason as his retaliation claim—his allegations are entirely conclusory.
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would realize [it] to be serious,” even though the condition was not visually obvious). If the
plaintiff’s claim, however, is based on “the prison’s failure to treat a condition adequately, or where
the prisoner’s affliction is seemingly minor or non-obvious,” Blackmore, 390 F.3d at 898, the
plaintiff must “place verifying medical evidence in the record to establish the detrimental effect of
the delay in medical treatment,” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001)
(internal quotation marks omitted), abrogation on other grounds recognized by Lawler as next
friend of Lawler v. Hardeman Cnty., 93 F.4th 919, 927 (6th Cir. 2024).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind” in denying medical care. Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000). Deliberate indifference “entails something more than mere negligence,” but can
be “satisfied by something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Farmer, 511 U.S. at 835. “[T]he official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Id. at 837. To prove a defendant’s subjective knowledge, “[a]
plaintiff may rely on circumstantial evidence . . . : A jury is entitled to ‘conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.’” Rhinehart v. Scutt,
894 F.3d 721, 738 (6th Cir. 2018) (quoting Farmer, 511 U.S. at 842).
However, not every claim by a prisoner that he has received inadequate medical treatment
states a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105 (1976). As the
United States Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be said to
constitute an unnecessary and wanton infliction of pain or to be repugnant to the
conscience of mankind. Thus, a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not become
a constitutional violation merely because the victim is a prisoner. In order to state
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a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.
Id. at 105–06 (quotations omitted). Thus, differences in judgment between an inmate and prison
medical personnel regarding the appropriate medical diagnoses or treatment are not enough to state
a deliberate indifference claim. Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017); Briggs v.
Westcomb, 801 F. App’x 956, 959 (6th Cir. 2020); Mitchell v. Hininger, 553 F. App’x 602, 605
(6th Cir. 2014). This is so even if the misdiagnosis results in an inadequate course of treatment and
considerable suffering. Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr.
4, 1997).
Here, Crump’s allegations evince nothing more than a disagreement with NP Groff and
HUM Mikel over the appropriate accommodations for Crump’s medical conditions. As the
response to Crump’s February 13, 2024 grievance explains:2
Upon investigation of the Electronic Medical Record (EMR), Grievant transferred
to LCF on 5/1/2021. At that time, the Grievant had a permanent wheelchair detail.
He was placed in LCF Unit A due to his condition and permanent wheelchair detail.
The Grievant continued to improve to a walker and eventually a cane. He has been
observed ambulating to medication lines and throughout the Unit without his cane
and without any difficulties. LCF Unit A has transitioned to a medically frail unit.
There is medical criteria that has been placed to be in this unit. At this time the
Grievant does not meet that criteria[.] On 2/8/2024, the Medical Provider, Health
Unit Manager reviewed the prisoners in Unit A. The Medical Provider made the
informed decision that the Grievant could have all medical accommodations met in
general population and does not need the Unit A medical frail unit[.] Grievant was
transferred to Unit Bl, which is directly across from healthcare and medlines.
(ECF No. 50-1 at PageID.392.) Due to the aging population at LCF, the Special Needs Unit had
transitioned to a medically frail unit and Crump did not meet the medical criteria for that level of
care, but as determined by NP Groff and HUM, his medical accommodations could be met in
general 	population. 	To 	the 	extent 	that 	Crump 	disagrees 	with 	Defendants’ 	treatment
2 The Court may consider the grievance response because Crump attached it to his amended
complaint.
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recommendations informed by their medical judgment, his disagreement with a provider “over the
proper course of treatment alleges, at most, a medical-malpractice claim, which is not cognizable
under § 1983.” Darrah, 865 F.3d at 372 (citations omitted); Mitchell, 553 F. App’x at 605 (“[A]
desire for additional or different treatment does not suffice by itself to support an Eighth
Amendment claim.” (citations omitted)). Thus, Crump’s claim against Defendants Mikel and
Groff for moving him into general population fails to state a claim.
3. 	Inspector LaMontagne
I construe Crump’s allegations against Defendant LaMontagne as raising First Amendment
retaliation and Eighth Amendment deliberate indifference claims.
As to the retaliation claim, Crump seeks to establish the first element—his exercise of
protected conduct—with his allegation that, at some unknown time, he had complained to
LaMontagne about CO Riley as well as his difficulties getting copies of his original complaint
from staff. But the lack of even an approximate date creates an issue for the third element, i.e., the
motivational connection. In some circumstances, temporal proximity “may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create an inference of retaliatory
motive.’” Muhammad v. Close, 379 F.3d 413, 417–18 (6th Cir. 2004) (quoting DiCarlo v. Potter,
358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are
not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir.
2004). Here, Crump’s conclusory allegations fall short of providing the requisite closeness in time
to support a retaliation claim based on temporal proximity. See Witham v. Piggott, No. 1:24-cv-
537, 2024 WL 4273576, at *11 (W.D. Mich. Sept. 24, 2024) (“The Sixth Circuit . . . has been
reluctant to find that temporal proximity between the filing of a grievance and an official’s adverse
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conduct, standing alone, is sufficient to establish a retaliation claim.” (citing Hill v. Lappin, 630
F.3d 468, 476 (6th Cir. 2010)).
Crump’s retaliation claim also fails on the second element, adverse action. In general, an
officer’s direct order to a prisoner would not constitute adverse action. Adhering to orders is simply
an ordinary part of prison life. Conceivably, an order could amount to adverse action where it
ripens into a retaliatory misconduct charge for failing to follow a direct order. See Bozell v.
Howard, No. 2:25-cv-166, 2025 WL 3001807, at *10 (W.D. Mich. Oct. 27, 2025) (disobeying
direct order misconduct issued in response to prisoner’s threat to grieve the defendant for
retaliation). Here, while Crump alleges that he told LaMontagne he could not comply with the
order, nothing suggests that LaMontagne issued the misconduct for retaliatory purposes.
Moreover, Crump’s amended complaint allegations are not the only facts he presents to the Court.
Crump has attached the Class I misconduct hearing report relating to the incident to his amended
complaint. The hearing officer who conducted the hearing considered the misconduct report, the
hearing investigation report, and Crump’s statement. After reviewing the evidence, the hearing
officer found Crump guilty of disobeying a direct order and set forth the following detailed reasons
for such findings:
Pursuant to PD 03.03.1051 disobeying a direct order is defined as refusal or failure
to follow a valid and reasonable order of an employee. I find the prisoner did receive
an order to return to his housing unit. The prisoner did hear and understand the
order and did voluntarily refuse to comply with the order, as his verbal response
indicates. The prisoner stated “no,” not “'I’ll try” or “I need an assistant”'. The order
was valid and reasonable as he was physically able to comply with the order, he
was not in immediate physical harm if he complied with the order and there were
no prior conflicting orders. I find the prisoner did not comply with the order because
he wants to lock in the special needs housing unit. This is not good cause. The
prisoner is found guilty of (020).
(ECF No. 50-1 at PageID.401.)
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Under certain circumstances, the facts stated in the ALJ’s report have preclusive effect in
this Court. See Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013). In Peterson, the Sixth Circuit
considered whether a hearing officer’s factual finding that the plaintiff grabbed the defendant’s
hand should be accorded preclusive effect on the plaintiff’s Eighth Amendment claim. Peterson
claimed that Corrections Officer Johnson started a scuffle by reaching into Peterson’s cell to pull
Peterson out and assault him. Corrections Officer Johnson claimed that Peterson initiated the
scuffle by grabbing Johnson’s hand and pulling him into the cell. Id. at 908. Corrections Officer
Johnson wrote a major misconduct report against Peterson for assaulting and battering Johnson;
Peterson defended by claiming that Johnson was the assaulter and batterer. The hearing officer
heard testimony, reviewed affidavits, and reviewed a video of the incident. The hearing officer
concluded that Peterson was guilty of assault and battery and that Corrections Officer Johnson did
not start the melee.
In resolving the question, the court looked to University of Tennessee v. Elliott, 478 U.S.
788 (1986), which explained that “‘when a state agency acting in a judicial capacity . . . resolves
disputed issues of fact properly before it which the parties have had an adequate opportunity to
litigate,’ federal courts must give the agency’s factfinding the same preclusive effect to which it
would be entitled in the State’s courts.” 478 U.S. at 799 (internal citation omitted). The Sixth
Circuit held that the Elliott Court identified four criteria for according preclusive effect to the
administrative factual findings: (1) whether the state agency acted in a judicial capacity; (2)
whether the hearing officer resolved a disputed fact that was properly before her; (3) whether the
party to be precluded had an adequate opportunity to litigate the factual dispute; and (4) if the other
three criteria are satisfied, the finding is given the same preclusive effect as it would be given in
state courts. Peterson, 714 F.3d at 912–13. After applying the four Elliott criteria to the MDOC’s
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major misconduct hearing process, the Sixth Circuit concluded that Michigan courts would grant
preclusive effect to the hearing officer’s finding that the plaintiff grabbed the defendant's hand. Id.
at 917.
The Sixth Circuit subsequently qualified the Peterson holding in Roberson v. Torres, 770
F.3d 398 (6th Cir. 2014). In Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018), the Sixth Circuit
considered all of those authorities and further clarified the limitations of the preclusion doctrine,
as follows:
In Peterson, the Court considered, as a matter of first impression, whether a hearing
officer’s factual determination at a Michigan major misconduct hearing has
preclusive effect in litigation brought by a prisoner under § 1983. Id. at 908, 911.
The Court concluded that, because all four requirements were met, the “hearing
officer's factual finding that [the prisoner] was the one who grabbed [the officer’s]
hand precludes a contrary finding in federal court.” Id. at 917. In Roberson v.
Torres, the Court considered the same issue, and identified the four requirements
listed above. 770 F.3d 398, 403–04 (6th Cir. 2014). The Court said that Peterson
does not mean that “any factual findings by a hearing officer in a major-misconduct
hearing in a Michigan prison are to be accorded preclusive effect.” Id. at 404.
“Peterson is not a blanket blessing on every factual finding in a major-misconduct
hearing.” Id.
Indeed, the question of preclusion cannot be resolved categorically,
as it turns on case-specific factual questions such as what issues
were actually litigated and decided, and whether the party to be
precluded had sufficient incentives to litigate those issues and a full
and fair opportunity to do so—not just in theory, but in practice. It
likewise turns on the court's sense of justice and equity, which may
require a case-by-case analysis of surrounding circumstances.
Id. at 404–05 (internal citations and quotation marks omitted). The Court declined
to decide the preclusion question[ ] and remanded the case to the district court to
consider the argument for the first time. Id. at 405. The Court instructed the district
court to “give particular attention to the fairness and accuracy of the factual findings
made by the major-misconduct hearing officer.” Id. The Court advised that
“[n]umerous inquiries may be relevant to the district court's analysis,” like “why
the hearing officer refused to review the alleged video of the incident, whether the
hearing officer provided a sufficient and reasonable basis for her factual findings,
and whether the testimony of other witnesses corroborated the accounts provided
by either [the prisoner] or [the officer].” Id. at 405.
Maben, 887 F.3d at 259.
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Here, the factors identified in Peterson, Roberson, and Mayben support giving the ALJ’s
factual findings preclusive effect. The hearing report notes that Crump pled not guilty and was
given an adequate opportunity to present his version of events. Although Crump alleges that HI
Brawley ignored his request for his medical detail and special accommodation detail, Crump fully
explained his impairments and his need for assistance to the hearing officer. Thus, the hearing
officer’s finding that Crump disobeyed a direct order is entitled to preclusive effect.
As for Crump’s deliberate indifference claim, the hearing officer found that Crump simply
refused to comply with the order without requesting an assistant. Crump admits that LaMontagne
did not ignore Crump’s alleged need for assistance, as LaMontagne had COs escort him to
segregation. As such, Crump has not plausibly alleged that LaMontagne exposed him to an
unreasonable risk of harm.
4. 	HI Brawley
I construe Crump’s allegations against HI Brawley to allege only a Fourteenth Amendment
procedural due process claim.
Procedural due process claims pose two inquiries. Thomas v. Cohen, 304 F.3d 563, 576
(6th Cir. 2002) (citing, among others, Board of Regents v. Roth, 408 U.S. 564, 570–71 (1972));
Mathews v. Eldridge, 424 U.S. 319, 332 (1976)). “First, the court must determine whether the
interest at stake is a protected liberty or property right under the Fourteenth Amendment. Only
after identifying such a right [does a court] continue to consider whether the deprivation of that
interest contravened notions of due process.” Id. Although the Due Process Clause provides
procedural safeguards where there is a protected liberty or property right, the Constitution does
not create such property interests. Id. (citing Cleveland v. Bd. of Educ. of Loudermill, 470 U.S.
532, 538 (1985)). “Instead, they are ‘created and their dimensions are defined by existing rules or
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understandings that stem from an independent source such as state law[.]’” Id. (quoting Roth, 408
U.S. at 577). In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court found that a prisoner
has a protected liberty interest in good-time credits:
[T]he State having created the right to good time and itself recognizing that its
deprivation is a sanction authorized for major misconduct, the prisoner’s interest
has real substance and is sufficiently embraced within Fourteenth Amendment
“liberty” to entitle him to those minimum procedures appropriate under the
circumstances and required by the Due Process Clause to insure that the state-
created right is not arbitrarily abrogated.
Id. at 557.
Crump does not allege that his major misconduct conviction resulted in any loss of good-
time credits; nor could he. The Sixth Circuit has examined Michigan statutory law, as it relates to
the creation and forfeiture of disciplinary credits3 for prisoners convicted of crimes occurring after
April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined that loss of
disciplinary credits does not necessarily affect the duration of a prisoner’s sentence. Rather, it
merely affects parole eligibility, which remains discretionary with the parole board. Id. at 440.
Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held that a
misconduct citation in the Michigan prison system does not affect a prisoner’s constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912; accord, Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011). In the absence
of a demonstrated liberty interest, Crump has no due-process claim based on the loss of disciplinary
credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Moreover, Crump cannot show that he suffered a significant, atypical deprivation as
required by Sandin v. Connor, 515 U.S. 472 (1995). Crump has not identified any significant
3 For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under
a statute that abolished the former good-time system. Mich. Comp. Laws § 800.33(5).
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deprivation resulting from his conviction; instead, he received only seven days’ loss of privileges.
Short-term penalties and loss of privileges do not equate to an atypical and significant hardship.
Sandin, 515 U.S. at 486 (30 days of segregation is neither atypical nor significant); Ingram v.
Jewell, 94 F. App’x 271, 273 (6th Cir. 2004) (loss of privileges for 14 days is not atypical or
significant; Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir. 2000) (two-day
sentence of toplock is not atypical and significant); Hankins v. Woodward, No. 16-13845, 2017
WL 4276939, at *2 (E.D. Mich. Aug. 4, 2017) (penalty of five days of toplock and seven days of
loss of privileges is simply a short-term, minor penalty that does not implicate due process).
Because Crump had no liberty interest at stake, he was not entitled to due process in the
misconduct proceeding. Consequently, HI Brawley’s failure to obtain Crump’s medical and
accommodation records for the hearing could not have implicated Crump’s due process rights.
B. 	Exhaustion
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)).
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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
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).
1. 	Grievances at Issue4
There is no dispute that the grievances from the Step III Grievance Report pertaining to the
previous exhaustion motion (ECF No. 30-3) do not exhaust any claim at issue in the present
motion. Defendants support this motion with a more recent Step III Grievance Report for Plaintiff
dated September 30, 2025, which shows the grievances arising out of LCF that Plaintiff filed in or
after November 2023 and exhausted through Step III. (ECF No. 61-3.) The Step III Report shows
that Plaintiff filed two grievances, both of which he pursued to Step III after he filed his original
complaint:
 	LCF-24-02-0157-28i (0157 Grievance). In this grievance, Plaintiff alleged he asked
Grievance Coordinator (GC) Rohrig for assistance in completing a grievance form
and then typed a grievance and sent it to her. He claimed that Rohrig returned the
4 Because the September 22, 2025 Report and Recommendation set forth the general principles of
exhaustion under the PLRA, there is no need to repeat them here.
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grievance to him and told him to speak with his unit counselor. Plaintiff claimed
that this was contrary to the grievance policy and that it was the GC’s responsibility
to provide him assistance. (Id. at PageID.544.) The Step I grievance was rejected
because Plaintiff made no attempt to resolve the issue prior to filing the grievance
and it was vague regarding an alleged violation of policy. The Step III response
said that the rejection was upheld at Step III. (Id. at PageID.542.)
 	LCF-24-02-0147-28e (0147 Grievance). In this grievance, Plaintiff complained that
Defendants Groff and Mikel had “medically approved” moving him out of the
“Special Needs Unit” to unit B1 in GP, where his medical needs were not being
met. The Step I grievance was denied and a response was issued on March 4, 2024.
(Id. at PageID.547.) The Step III Report is missing the Step II response. However,
Plaintiff did not file his Step II appeal until February 3, 2025. (Id. at PageID.546.)
The Step III decision stated that the rejection was upheld, although it is not clear
why the Step III respondent believed that the grievance had been rejected at Step
II. (Id. at PageID.545.)
The parties do not dispute that the 0157 Grievance did not exhaust any claim at issue, as it
named only Grievance Coordinator Rohrig, who is not a party to this case. In addition to the 0147
Grievance, two other grievances are at issue, LCF-23-11-0894-28b/e (0894 Grievance) and LCF-
23-11-0904-28b (0904 Grievance). Both grievances pertain to the November 2023 events at issue
in Crump’s claim against CO Riley, and Crump did not exhaust them through Step III. (ECF No.
61-4.)
2. 	Analysis
a. 	CO Riley
The 0894 Grievance concerns Crump’s November 2, 2023 conversation with Shaw and
Riley regarding the email kiosk issue and other policy violations. The Step I grievance was
rejected. (Id. at PageID.552.) Crump’s Step II appeal was rejected as untimely. (Id. at PageID.554.)
Because Crump did not appeal to Step III, this grievance did not exhaust any claim against CO
Riley.
The 904 Grievance concerned the incident on November 6, 2023, in which Crump fell
while attempting to mop. This grievance was rejected as vague at Step I and was returned to him
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on November 15, 2023. (Id. at PageID.550.) It is undisputed that Crump did not appeal the 0904
Grievance to Step II. Crump claims that he did not appeal because the LCF grievance coordinator
did not provide him a Step II form. As support, he cites his declaration in response to the prior
exhaustion motion, in which he states that he never received a Step II form for the 0904 Grievance,
and his kite to the Warden’s Office requesting Step II appeal forms for the 0894 and 0904
Grievances. (ECF No. 66 at PageID.595 (citing ECF No. 1-2 at PageID.57; ECF No. 34).)
However, Crump fails to provide any evidence showing what he did to properly obtain a Step II
appeal form from the grievance coordinator. Under the grievance policy, Policy Directive
03.02.130 ¶ JJ, a prisoner must obtain a Step II form from the grievance coordinator, not the
Warden’s Office. Crump fails to provide any evidence showing that he actually requested a Step
II form from the grievance coordinator in accordance with policy.
As courts recognize, vague and unspecific statements by a prisoner that he attempted to
exhaust his administrative remedies are insufficient to create a genuine dispute of fact on the
question of exhaustion. See, e.g., Belser v. James, No. 16-2578, 2017 WL 5479595, at *2 (6th Cir.
June 6, 2017) (stating that “Belser’s generalized statements are insufficient to create a genuine
dispute of material fact as to whether the administrative process was available to him at MBP”);
Smith v. Brock, No. 1:22-cv-149, 2023 WL 3871923, at *5 (W.D. Mich. Mar. 16, 2023), report
and recommendation adopted, 2023 WL 3611730 (W.D. Mich. May 24, 2023) (prisoner’s vague
allegation that prison officials “destroyed” his grievances is insufficient to create a factual dispute
where the prisoner “does not state when he wrote these grievances, nor does he provide any
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information as to what they concerned”). Thus, Crump fails to show that the grievance process
was unavailable to him or that he was prevented from exhausting the 0904 Grievance.5
b. 	Mikel and Groff
The 0147 Grievance pertains to HUM Mikel and NP Groff’s decision to move Crump from
the Special Needs Unit, which had been redesignated a medically frail unit, to general population.
The 0147 Grievance was denied and returned to Crump on March 4, 2024. (ECF No. 61-3 at
PageID.547–48.) Crump did not file a Step II appeal within business ten days of this date as
required by the grievance policy. In the declaration he submitted in opposition to the first
exhaustion motion, Crump references the “aforementioned transfers,” but he provides no facts
explaining when and to which facility he had been transferred. (ECF No. 34 at PageID.289.) A
letter or kite that Crump addressed to LCF Grievance Coordinator Rohrig on March 25, 2024
shows that by that time he had been transferred to Gus Harrison Correctional Facility (ARF). (ECF
No. 34-1 at PageID.300.) Although the letter notes that Crump had not received “a few Step I &
II responses or Step II forms,” it did not specifically reference the 0147 Grievance. (Id.) A few
months later, on September 22, 2024, while still at ARF, Crump sent a letter to the Director’s
Office that was apparently forwarded to the LCF grievance coordinator, in which he requested
grievance responses and appeal forms for the 0894, 0904, 0147, and 0157 Grievances. (ECF No.
34-1 at PageID.302.) The response indicated that his requests for appeal forms for the 0147 and
0157 Grievances had never been received. (Id.) Nonetheless, the grievance coordinator sent Crump
an appeal form for the 0147 Grievance indicating that it had been due on March 19, 2024. (ECF
5 It is also worth noting that although Crump requested a Step II appeal form for the 0894
Grievance in his kite to the Warden’s Office (ECF No. 1-2 at PageID.57), he actually received a
Step II form. (ECF No. 61-4 at PageID.554.) Moreover, in response to his September 22, 2024
letter/kite, the LCF grievance coordinator noted that an appeal form for the 0904 Grievance had
been sent to Crump on November 21, 2023, while he was at LCF. (ECF No. 34-1 at PageID.302.)
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No. 61-3 at PageID.546.) On the Step III portion of the form, Crump wrote, “I mailed this to LCF
and it was mailed back without a Step II Response?!” (Id.) As mentioned above, the Step III
respondent noted that the Step II response was missing and stated that the rejection was upheld.
Although Crump has provided various documents to support his contention that he
attempted to exhaust his administrative remedies as to the 0147 Grievance, he fails to provide a
declaration or affidavit affirming what he actually did to timely appeal the 0147 Grievance to Step
II, notwithstanding his transfer to ARF. Thus, as with 0904 Grievance, I recommend that the Court
conclude that Crump fails to create a genuine issue of material fact as to his efforts to diligently
pursue his administrative remedies.
c. 	Inspector LaMontagne
Defendants 	contend 	that 	Crump 	did 	not 	exhaust 	a 	grievance 	against 	Defendant
LaMontagne. (ECF No. 61 at PageID.521.) In response, however, Crump notes that he alleged in
his verified amended complaint that the day after LaMontagne issued him the misconduct for
disobeying a direct order, he filed a grievance against LaMontagne for retaliation and deliberate
indifference but did not receive a response or a grievance ID number. (ECF No. 66 at PageID.596
(citing ECF No. 50 at PageID.387).) As such, Crump’s verified complaint creates a genuine issue
of material fact as to whether Crump exhausted his available remedies against Defendant
LaMontagne.
d. 	HI Brawley
Defendants note that, under the grievance policy in effect at the time LaMontagne issued
the misconduct, a prisoner grieving a decision made in a Class I misconduct hearing must appeal
the decision under the process set forth in Policy Directive 03.03.105 pertaining to prisoner
discipline. Mich. Dep’t of Corr. Policy Directive 03.02.130 ¶ P.9 (effective 09/25/2023). On the
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other hand, if a prisoner claims that the misconduct was retaliatory, he must file a grievance on
that issue. Id. Defendants argue that HI Brawley’s alleged conduct in falsifying the screening and
investigation report by omitting his visual impairment, stating that Crump admitted guilt, and
reporting that Crump did not request any documents must be exhausted through the Class I
misconduct appeal process set forth in Policy Directive 03.03.105. (ECF No. 61 at PageID.522.)
Contrary to Defendants’ argument, Crump’s claims against Brawley do not pertain to the
hearing officer’s “decision.” Rather, they pertain to Brawley’s conduct in completing the
investigation report prior to the hearing and failing to provide the requested documents. As such,
Crump was required to exhaust his claim through the grievance process. Although Crump alleges
in his verified amended complaint that he filed a grievance against HI Brawley the day of the
hearing but did not receive a response or a grievance ID number, his allegation is insufficient to
create a genuine issue of material fact as to whether he exhausted his claim against HI Brawley.
Crump alleges his grievance was for retaliation, but Crump’s allegations against HI Brawley do
not support a retaliation claim. (ECF No. 50 at PageID.387.) Thus, Crump did not exhaust any
claim against HI Brawley set forth in the amended complaint.
III. 	Conclusion
For the foregoing reasons, I recommend that, with the exception of the Baclofen claim
against Defendant Groff, the Court dismiss Crump’s claims in the amended complaint pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1) for failure to state a claim. If the Court adopts this
recommendation, it need not consider the recommendations concerning exhaustion and may deny
Defendants’ corrected motion (ECF No. 60) as moot. If the Court finds that Crump states one or
more claims, I recommend that it find the claims against Defendants Riley, Mikel and Groff, and
Brawley unexhausted, and find an issue of fact as to exhaustion on the claim against LaMontagne,
and grant/deny the motion as appropriate.
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Dated: March 27, 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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