Evans #367619 et al v. Washington et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALRELIO EVANS,
Case No. 1:24-cv-913
Plaintiff,
Hon. Hala Y. Jarbou
v.
HEIDI WASHINGTON, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action by plaintiff Alrelio Evans, a prisoner in the
custody of the Michigan Department of Corrections (MDOC). 	Plaintiff filed an amended
complaint (ECF No. 8) brought pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act,
42 U.S.C. §§ 12101 et seq. (ADA), the Protection and Advocacy for Individuals with Mental
Illness Act, 42 U.S.C. § 10801 et seq. (PAIMI), and the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961 et seq. (RICO). See Opinion (ECF No. 11, PageID.154).
The alleged incidents occurred at the MDOC’s Ionia Correctional Facility (ICF) and Bellamy
Creek Correctional Facility (IBC).
On initial review of the amended complaint, the Court dismissed plaintiff’s claims
against defendants Bush, Heydens, Unknown Parties (referred to as ICF staff), Atearn, Macauley,
Hadden, Addis, Houghton, Unknown Party #1 and Unknown Party #2. See Opinion (ECF No. 11)
and Order (ECF No. 12).
The following claims remain in the case: (1) plaintiff’s Eighth Amendment claims
against defendants ICF Warden John Davids, ICF Deputy Warden Bonn, ICF Assistant Deputy
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Warden (ADW) R. Brokaw, ICF ADW J. Dunigan, ICF Residential Unit Manager (RUM) Luther,
ICF Prison Counselor (PC) Simon, ICF PC Walton L. Smith, ICF Psychiatrist Saad, ICF
Psychiatrist Shafer, ICF Psychologist/Social Worker Michelle Norton, ICF Psychologist Bookie,
and ICF Unit Chief Maranka; and, (2) plaintiff’s ADA claim against MDOC Director Heidi
Washington. Opinion at PageID.149.
This matter is now before the Court on two motions (ECF Nos. 34 and 36). First,
defendants Washington, Davids, Bonn, Brokaw, Dunigan, Luther, Simon, Smith, Norton, Bookie,
and Maranka (collectively the “MDOC Defendants”) filed a motion for summary judgment based
on exhaustion (ECF No. 34). Second, defendants Hanna Saad, M.D. and Tracy Shafer, N.P. filed
a combined “Motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative for
summary judgment for failure to exhaust administrative remedies” (ECF No. 36). Plaintiff did not
oppose the motions.
I. 	Background
Plaintiff’s amended complaint involves his time spent in the Start Now Unit.
Opinion at PageID.150. As this Court explained,
The mission statement for the MDOC Start Units reads as follows: “To
provide a secure general population alternative to administrative segregation while
providing programming and other structured and unstructured out of cell activities
based upon the prisoner’s positive adjustment, with the goal of reintegration into
traditional general population.” See, e.g., Randall v. Washington, No. 1:24-cv-344,
2024 WL 3158258, at *2 (W.D. Mich. June 25, 2024); Miller v. Davids, No. 1:20-
cv-108, 2022 WL 329844, at *9 (W.D. Mich. Jan. 6, 2022).
Id. at fn. 1.
Plaintiff arrived at ICF’s Start Now Unit on September 23, 2022. Id. at PageID.151.
“[Plaintiff] claims that he was ‘sent to a higher security level’ and ‘spent over 7 days (over 2 years
now) in temporary segregation due to lack of bed space in the Start Unit.’ ” Id.
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Plaintiff sent notice to Defendants Washington, Bush, Heydens, Davids, Bonn,
Brokaw, Dunigan, Luther, Smith, Simon, Saad, Schafer [sic], Norton, Bookie, and
Maranka that he was in temporary segregation for more than 7 days and that he is
mentally ill. 	Plaintiff explained that he had been diagnosed with several mental
health disorders and that he had “experienced increased depression, anxiety,
delusions, 	post-traumatic 	slave 	syndrome, 	post-traumatic 	stress 	disorder,
psychosis, 	claustrophobia, 	suicidal 	ideation, 	paranoia[,] 	and 	schizoaffective
disorder due to prolonged solitary confinement.”
Id. (internal citations omitted).
Among other things, plaintiff alleged “that he suffered from weight loss and
delirium due to engaging in hunger strikes” and that the program “is falsely advertised as a mental
health program ‘so that Defendants can accumulate additional public funds and funds from
philanthropist organizations.’ ” Id. at PageID.152.
In addition,
Plaintiff contends that the Start Now program is unconstitutional because it “denies
religious services, clean environment, law library access, . . . exaggerate[s]
programming[,] and create[s] mental illnesses.” Plaintiff claims that inmates in the
program are “treated sadistically and maliciously under the belief [they] are too
mentally ill to navigate through the courts.” Plaintiff “is not allowed to clean his
cell properly and sometimes not at all.” He contends that he must be escorted to
the shower and yard cages in handcuffs, and “is fed in his filthy cell.” Plaintiff is
not allowed to go to the gym for exercise. He “is required to attend SCC reviews
monthly like all other [administrative segregation] prisoners.” He suggests that the
Start Now program “is merely a front to hold Plaintiff in segregation indefinitely.”
Id. at PageID.152-153 (internal citations omitted).
II. 	Motion to dismiss
Defendants Dr. Saad and N.P. Shafer moved to dismiss the amended complaint for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The Court conducted an initial review
of plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915(e), § 1915A and 42 U.S.C. §
1997e(c), to determine whether it is frivolous, malicious, fails to state a claim upon which relief
can be granted or seeks monetary relief against a defendant that is immune from such relief. See
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Opinion (ECF No. 11). Upon this initial review, the Court concluded that the amended complaint
was not subject to dismissal for any of the reasons listed above and that it stated Eighth
Amendment claims against Dr. Saad and N.P. Shafer. See Opinion at PageID.148-149, 156-163.
In reaching this conclusion, the Court determined that,
Although Plaintiff has by no means proven his Eighth Amendment claims, at this
stage of the proceedings, taking Plaintiff’s factual allegations as true and in the light
most favorable to him, the Court will not dismiss Plaintiff’s Eighth Amendment
claim regarding Plaintiff’s continued detention in segregation-like conditions
against Defendants Davids, Bonn, Brokaw, Dunigan, Luther, Smith, Simon, Saad,
Schafer [sic], Norton, Bookie, and Maranka.
Id. at PageID.162-163. There is no reason for the Court to perform a second review of plaintiff’s
allegations. Accordingly, Dr. Saad and N.P. Shafer’s motions to dismiss should be denied. 1
III. 	Summary Judgment
A. 	Legal standard
Defendants have moved for summary judgment for lack of exhaustion. “The court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, 	electronically 	stored 	information, 	affidavits 	or 	declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1).
1 In reaching this determination, the Court notes that defendants Dr. Saad and N.P. Shafer did not ask the Court to
reconsider the screening opinion. See Saad and Shafer Brief (ECF No. 36, PageID.445-446).
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In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’
burden of proof in a motion for summary judgment:
The moving party bears the initial burden of establishing an absence of evidence to
support the nonmoving party’s case. Once the moving party has met its burden of
production, the nonmoving party cannot rest on its pleadings, but must present
significant probative evidence in support of the complaint to defeat the motion for
summary judgment. The mere existence of a scintilla of evidence to support
plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.
Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment,
the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving
party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
Plaintiff did not file a responsive brief as required by W.D. Mich. LCivR 7.2(c),
“any party opposing a dispositive motion shall, within twenty-eight (28) days after service of the
motion, file a responsive brief and any supporting materials”. “The fact that there has been no
response to a summary judgment motion does not, of course, mean that the motion is to be granted
automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). The trial court is required
to “intelligently and carefully review the legitimacy of such unresponded-to motion” and cannot
“blithely accept the conclusions argued in the motion.” Guarino v. Brookfield Township Trustees,
980 F.2d 399, 407 (6th Cir. 1992). However, when a motion for summary judgment is unopposed,
“[n]othing in either the Rules or case law supports an argument that the trial court must conduct
its own probing investigation of the record” to demonstrate the existence of genuine issues of
material fact. Id. at 405.2
2 The Court notes that plaintiff included a “verification” at the end of his complaint, presumably so that it could serve
as supporting material for a response to a motion for summary judgment. See Amend. Compl. at PageID.141; Lavado
v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (a verified complaint has the same force and effect as an affidavit for
purposes of responding to a motion for summary judgment). Here, there are no verified allegations which address the
exhaustion issues raised in defendants’ briefs. Even if plaintiff had included some facts regarding exhaustion, it is not
the function of this Court to create legal arguments for plaintiff to respond to defendants’ motion. “The Court’s role
is adjudicatory; it is not an advocate.” Burley v. Miller, 241 F. Supp. 3d 828, 840 (E.D. Mich. 2017).
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B. 	Lack of Exhaustion
1. 	Exhaustion requirement
The Prison Litigation Reform Act (PLRA) provides that a prisoner bringing an
action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available
administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S.
731 (2001). A prisoner must 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. See
Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. 	One reason for creating prisoner grievance
procedures under the PLRA was to create an administrative record for the court.
Requiring exhaustion allows prison officials an opportunity to resolve disputes
concerning the exercise of their responsibilities before being haled into court. This
has the potential to reduce the number of inmate suits, and also to improve the
quality of suits that are filed by producing a useful administrative record.
Jones v. Bock, 549 U.S. 199, 204 (2007).
In order to properly exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable procedural
rules. Id. at 218; 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.
2. 	MDOC Grievance process
The MDOC requires prisoners to follow a three-step process to exhaust grievances.
See MDOC Policy Directive (“PD”) 03.02.130 (effective March 18, 2019). A prisoner must first
attempt to resolve a problem with the staff member within two business days of becoming aware
of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ Q. If
the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within
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five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶
Q and S. The Policy Directive 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 ¶ S (emphasis in original). The prisoner must send the Step I grievance to the appropriate
grievance coordinator. Id. at ¶ W. If the prisoner is dissatisfied with the Step I response, or does
not receive a timely response, he must request the appropriate form and send it to the Step II
Grievance Coordinator. Id. at ¶ DD. Finally, if a prisoner is dissatisfied with the Step II response,
or does not receive a timely response, he must send a completed Step III grievance, using the
appropriate form, to the Grievance and Appeals Section. Id. at ¶ HH.
C. 	Discussion
1. 	MDOC Defendants
MDOC defendants have identified three grievances which plaintiff filed through
Step III which could be relevant to his claims raised in the amended complaint: ICF-23-07-0694-
28c (“694”); ICF-22-11-1280-27z (“1280”); and, ICF-22-11-1285-28c (“1285”) (119-123).
MDOC Defendants’ Brief (ECF No. 35, PageID.282-283). 3 	As discussed, infra., the MDOC
defendants do not contest that plaintiff exhausted a claim against PC Simon in Grievance 1280.
See id. at PageID.290, fn. 5.
a. 	Defendants Brokaw, Dunigan, Bookie, Washington
As an initial matter, none of these grievances sought relief against defendants ADW
Brokaw, ADW Dunigan, Psychologist Bookie, or MDOC Director Washington. 	There is no
3 The MDOC Defendants observed that plaintiff referred to these grievances in his original complaint. See MDOC
Defendants’ Brief at PageID.282-283.
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evidence that plaintiff properly exhausted a grievance against these defendants. See Jones, 549
U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, these defendants should be granted
summary judgment.
b. 	Grievance 694
Grievance 694 involved an incident date of July 6, 2023. Grievance 694 (ECF No.
35-3, PageID.350). 	Plaintiff directed the grievance at Dr. Schafer [sic] and PC Simon. 	The
grievance contained several claims: plaintiff listed numerous medical conditions (anxiety,
depression, 	post-traumatic 	stress 	disorder, 	post-traumatic 	slave 	syndrome, 	psychosis,
hallucinations, paranoia, claustrophobia, and suicidal ideations); plaintiff claimed violations of the
First, Eighth and Fourteenth Amendments “by holding me in Segregation over 7 days without a
hearing”; plaintiff claimed retaliation for filing grievances; plaintiff stated that he is unable to clean
his cell, can shower only three days a week, and can use a phone once a week; plaintiff stated that
he is denied “Secure Paks” (which included basic necessities “such as soap, shampoo, deodorant,
shower shoes, OTC meds., etc.”); plaintiff stated that he is not given general population privileges;
and, plaintiff asked to be released from “Seg./SHU/”Start”. Id.
The MDOC rejected the grievance because it violated PD 03.02.130 ¶ G which
“states that you must limit your grievance to one (1) issue per grievance.” 	PageID.351. The
grievance was denied at Step II (“Grievance Coordinator Miller’s Step I response is both adequate
and appropriate to address the allegations or concerns presented in the grievance”) and the rejection
was upheld at Step III. PageID.348, 349. Grievance 694 was not properly exhausted. See Jones,
549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, PC Simon should be granted
summary judgment with respect to the claims set forth in that grievance.
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c. 	Grievance 1280
Grievance 1280 involved an incident date of October 31, 2022 (ECF No. 35-3,
PageID.405). 	Plaintiff did not direct the grievance at anyone in particular, but did attempt to
resolve the issue with the “staff member involved” (PC Simon) on November 1, 2022. Id. See PD
03.02.130 at ¶ Q (“Prior to submitting a written grievance, the grievant shall attempt to resolve the
issue with the staff member involved”). 	The MDOC rejected the grievance as raising a non-
grievable issue:
From the start manual: Store purchases are limited to mandatory store items. In
addition, prisoners cannot make purchases from the Friends and Family Package
Program while in this stage. Any items received for the prisoner that were
purchased through the Friends and Family Package Program by the prisoner prior
to placement in this stage, or purchased by a member of the public, will be returned
to the vendor and will not be redelivered. The order will not count toward the
quarterly limit. Grievance is rejected at step 1 as nongrievable.
PageID.406. The grievance was denied at Step II (“Grievance Coordinator Ferguson’s Step I
response is both adequate and appropriate”) and the rejection was upheld at Step III. PageID.402,
404.
However, PC Simon does not raise an exhaustion defense to this Grievance stating:
The MDOC Defendants are not challenging exhaustion under ICF-1280, but the
only claim exhausted by (and raised in) ICF-1280 is PC Simon’s alleged denial of
Evans’ SmartPak on October 31, 2022.
MDOC Defendants’ Brief at PageID.290, fn. 5. See also, id. at PageID.291 (“the only claim Evans
exhausted against the MDOC Defendants is the claim he asserted in ICF-1280 against PC Simon—
i.e., that PC Simon allegedly denied him a SmartPak on October 31, 2022.”). Accordingly, this
case should proceed against PC Simon on that Eighth Amendment violation.
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d. 	Grievance 1285
Grievance 1285 involved an incident date of November 6, 2022. Grievance 1285
(ECF No. 35-3, PageID.425). Plaintiff directed the grievance at defendants Unit Chief Maranka,
PC Simon, RUM Luther, ADW Bonn, “Deputy Warden Unknown”, Warden Davis, and Social
Worker Norton. Id. Plaintiff listed a number of complaints: “I’ve been in temporary segregation
for over seven business days due to lack of bed space in the Start Unit in violation of DOM 2022-
12”; various constitutional violations (his Eighth Amendment right to be free from cruel and
unusual punishment and deliberate indifference, his Fourteenth Amendment due process rights,
and his First Amendment rights to “Redress of Grievances-Retaliation”); numerous medical
conditions (increased depression, anxiety, post-traumatic stress disorder, post-traumatic slave
syndrome, psychosis, claustrophobia, suicidal ideation and paranoia due to prolonged solitary
confinement (since 6-30-33); “Mental health staff refused to refer me to the Residential Treatment
Program”; “SCC refuse to classify me to general population or transfer me to a Regional Facility
near Detroit so I can have visits from my sick mother”; “The impact of 24 hour lockdown in
segregation have been detrimental on my mental health”; “I been on major Hunger-Strikes due to
my mistreatment”; “This is direct retaliation against me for grievances at IBC, my litigation against
Heidi Washington and my involvement with the National Appellate Clinic”; and “I request a
transfer to MRF”. Id.
The MDOC rejected the grievance because it violated PD 03.02.130 ¶ G 	which
“states that you must limit your grievance to one (1) issue per grievance.” 	PageID.426. The
grievance was denied at Step II (“Grievance Coordinator Ferguson’s Step I response is both
adequate and appropriate to address the allegations or concerns presented in the grievance”) and
the rejection was upheld at Step III. PageID.424, 427. Grievance 1285 was not properly exhausted.
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See Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, Unit Chief Maranka,
PC Simon, RUM Luther, ADW Bonn, Warden Davis, and Psychologist/Social Worker Norton
should be granted summary judgment with respect to the claims set forth in that grievance.
e. 	Summary
Based on this record, defendants Brokaw, Dunigan, Bookie, Washington, Maranka,
Luther, Bonn, Davis, and Norton should be granted summary judgment for lack of exhaustion.
The only remaining MDOC defendant, Simon, should be granted summary judgment as to all
claims except for the incident set forth in Grievance 1280, i.e., an Eighth Amendment claim that
Simon denied plaintiff a SmartPak on October 31, 2022. 	See MDOC Defendants’ Brief at
PageID.291. Accordingly, this case should proceed against PC Simon on that Eighth Amendment
violation.
2. 	Defendants Dr. Saad and N.P. Tracy Shafer
Defendants Dr. Saad and N.P. Shafer also seek summary judgment on the basis of
exhaustion. 	These defendants identified Grievances 694 and 1285 as related to the incidents
alleged in the amended complaint. 	See Defendants Saad and Shafer’s Brief (ECF No. 36,
PagerID.447). 	Neither Grievance 694 nor Grievance 1285 were directed against Dr. Saad. 	In
short, there is no evidence that plaintiff filed a grievance against Dr. Saad. Similarly, N.P. Shafer
is not named in Grievance 1285. However, N.P. Shafer is named in Grievance 694. For the same
reasons as set forth in § III.C.1.b., plaintiff did not properly exhaust Grievance 694. Based on this
record, plaintiff did not properly exhaust any grievances against Dr. Saad or N.P. Shafer. 	See
Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. 	Accordingly, defendants Saad and
Shafer’s motion for summary judgment should be granted.
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IV. 	Recommendation
For these reasons, I respectfully recommend that defendants Washington, Davids,
Bonn, Brokaw, Dunigan, Luther, Smith, Norton, Bookie, and Maranka’s motion for summary
judgment (ECF No. 34) be GRANTED and that they be DISMISSED from this action.
I further recommend that defendant Simon’s motion for summary judgment (ECF
No. 34) be GRANTED, meaning that all claims against Simon be DISMISSED except for the
Eight Amendment claim that Simon failed to provide a SmartPak on October 31, 2022.
I further recommend that defendants Saad and Shafer’s motion to dismiss (ECF No.
36) be DENIED.
I further recommend that defendants Saad and Shafer’s motion for summary
judgment (ECF No. 36) be GRANTED and that they be DISMISSED from this action.
If the Court adopts these recommendations, then the only claim remaining in this
case will be plaintiff’s Eighth Amendment claim that defendant Simon failed to provide plaintiff
with a SmartPak on October 31, 2022.
Dated: January 5, 2026 	/s/ Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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