Simmons #697407 v. Sutten et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
PAUL SIMMONS #697407, 	Case No. 1:25-cv-00513
Plaintiff, 	Hon. Robert J. Jonker
U.S. District Judge
v.
UNKNOWN SUTTEN, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendants’ motion for
summary judgment due to Plaintiff’s failure to exhaust administrative remedies.
ECF No. 15. 	The R. & R. also addresses Defendants’ motion to strike the sur-reply
filed by Plaintiff. ECF No. 21.
State prisoner Paul Simmons filed a complaint under 42 U.S.C. § 1983 alleging
that Defendants violated his First Amendment rights by retaliating against him.
ECF No. 1. 	Defendants argue that Plaintiff failed to exhaust his administrative
remedies against them. The Court issued a screening opinion on June 5, 2025. ECF
No. 6. The remaining claims are for alleged retaliatory acts by Defendants Sergeants
(Sgt.) Spohn and Palmer, and Corrections Officer (CO) Sutten. 	Plaintiff asserts in
his remaining claims that:
 	On November 17, 2024, Sgt. Spohn allegedly told officers to “ticket his
ass every time he writes a grievance”, ECF No. 1, PageID.3;
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 	On 	February 	2, 	2025, 	Sgt. 	Palmer 	gave 	Simmons 	a 	retaliatory
misconduct ticket due to the filing of a PREA grievance, id.; and
 	CO Sutton gave Simmons a retaliatory misconduct ticket in retaliation
for Simmon’s threat to file grievances, id., PageID.4-5.
Simmons filed one grievance before he filed his complaint, but that grievance
failed to exhaust his administrative remedies against Defendants for any of his
remaining claims. Accordingly, it is respectfully recommended that the Court dismiss
this case due to Plaintiff’s failure to exhaust his administrative remedies.
II. Motion To Strike
As an initial matter, Plaintiff filed a sur-reply. ECF No. 20. Defendant argues
that the Court should strike ECF No. 20. ECF No. 21. This Court’s Local Civil Rules
allow for a response to a dispositive motion and then a reply to the response. 	W.D.
Mich. LCivR 7.2(c). 	“The court may permit or require further briefing.” 	Id. 	This
Court has noted that “[i]t is well-established that parties do not have a right to file a
sur-reply brief, whether under the Federal Rules of Civil Procedure or the Local Civil
Rules of our district, and both this court and other federal courts rarely grant leave
to file a surreply.” 	Aslani v. Sparrow Health Sys., No. 1:08-CV-298, 2009 WL
3711602, at *22 (W.D. Mich. Nov. 3, 2009) (footnote omitted). The Court may grant
leave to file a sur-reply to afford a party an opportunity to address new issues raised
for the first time in the reply. 	Eldridge v. Cardif Life Ins. Co., 266 F.R.D. 173, 175
(N.D. Ohio 2010).
Plaintiff’s 	sur-reply 	addresses 	issues 	raised 	by 	Defendants 	that 	require
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consideration by the Court. 	Accordingly, it is recommended that the Court deny
Defendant’s motion to strike Plaintiff’s sur-reply.
III. Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether
summary judgment is appropriate is “whether the evidence presents a sufficient
disagreement to require submission to a jury[1] or whether it is so one-sided that one
party must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421
F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in favor of the party opposing
the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
IV. Exhaustion of Administrative Remedies
A prisoner’s failure to exhaust his administrative remedies is an affirmative
defense, which Defendants have the burden to plead and prove. 	Jones v. Bock, 549
1 	The Seventh Amendment does not always require courts to submit factual
disputes about exhaustion to a jury. 	Lee v. Willey, 789 F.3d 673, 678 (6th Cir.
2015). However, when the exhaustion issue is intertwined with the merits of a claim,
the Seventh Amendment requires a jury trial on the exhaustion issue. 	Richards v.
Perttu, 605 U.S. 460, 479, 145 S.Ct. 1793, 1807 (2025).
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U.S. 199, 212-16 (2007). “[W]here the moving party has the burden—the plaintiff on
a claim for relief or the defendant on an affirmative defense—his showing must be
sufficient for the court to hold that no reasonable trier of fact could find other than
for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986).
The Sixth Circuit has repeatedly emphasized that the party with the burden of proof
“must show the record contains evidence satisfying the burden of persuasion and that
the evidence is so powerful that no reasonable jury would be free to disbelieve it.”
Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). Accordingly,
summary 	judgment 	in 	favor 	of 	the 	party 	with 	the 	burden 	of 	persuasion 	“is
inappropriate 	when 	the 	evidence 	is 	susceptible 	of 	different 	interpretations 	or
inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
Pursuant to the applicable portion of the Prison Litigation Reform Act (PLRA),
42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions
under 42 U.S.C. § 1983 must exhaust his available administrative remedies. Porter
v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). 	A
prisoner must first exhaust available administrative remedies, even if the prisoner
may not be able to obtain the specific type of relief he seeks in the state administrative
process. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215
F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).
To 	properly 	exhaust 	administrative 	remedies, 	prisoners 	must 	complete 	the
administrative review process in accordance with the deadlines and other applicable
procedural rules. 	Jones, 549 U.S. at 218-19; Woodford v. Ngo, 548 U.S. 81, 90-91
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(2006). 	“Compliance with prison grievance procedures, therefore, is all that is
required by the PLRA to ‘properly exhaust.’” 	Jones, 549 U.S. at 218-19. 	In rare
circumstances, the grievance process will be considered unavailable where officers
are 	unable 	or 	consistently 	unwilling 	to 	provide 	relief, 	where 	the 	exhaustion
procedures may provide relief, but no ordinary prisoner can navigate it, or “where
prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” 	Ross v. Blake, 578 U.S.
632, 644 (2016).
“Beyond doubt, Congress enacted [Section] 1997e(a) to reduce the quantity and
improve the quality of prisoner suits.” Porter, 534 U.S. at 524. In the Court’s view,
this objective was achieved in three ways. 	First, the exhaustion requirement
“afforded corrections officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” 	Id. at 525. 	Second, “the internal
review might ‘filter out some frivolous claims.’” Id. (quoting Booth, 532 U.S. at
737). And third, “adjudication could be facilitated by an administrative record that
clarifies 	the 	contours 	of 	the 	controversy.” Id. 	When 	institutions 	are 	provided
adequate notice as required under the PLRA, the opportunity to address the claims
internally furthers the additional goals of limiting judicial interference with prison
administration. Baker v. Vanderark, 1:07-cv-004, 2007 WL 3244075, *5 (W.D. Mich.,
Nov. 1, 2007).
Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective
September 25, 2023) sets forth the applicable grievance procedures for prisoners in
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MDOC custody at the time relevant to this complaint. Inmates must first attempt to
informally resolve a grievable issue within two business days of becoming aware of
the issue, unless prevented by circumstances beyond his or her control. 	Id. at ¶ W.
If informal resolution is unsuccessful, the inmate may proceed to Step I of the
grievance process and submit a completed grievance form within five business days
of the attempted informal resolution. 	Id. at ¶¶ W, CC. 	The inmate submits the
grievance to a designated Grievance Coordinator, who assigns it to a respondent. Id.
at ¶ CC. 	The Policy Directive also provides the following directions for completing
grievance forms: “The issues should be stated briefly but concisely. 	Information
provided is to be limited to the facts involving the issue being grieved (i.e., who, what,
when, where, why, how). Dates, times, places and names of all those involved in the
issue being grieved are to be included.” Id. at ¶ Y (emphasis in original).
If the inmate is dissatisfied with the Step I response, or does not receive a
timely response, he may appeal to Step II by obtaining an appeal form within ten
business days of the response, or if no response was received, within ten days after
the response was due. 	MDOC Policy Directive 03.02.130 at ¶¶ JJ. 	The respondent
at Step II is designated by the policy, e.g., the regional health administrator for
medical care grievances. Id. at ¶ LL.
If the inmate is still dissatisfied with the Step II response, or does not receive
a timely Step II response, he may appeal to Step III using the same appeal form. 	Id.
at ¶¶ NN. 	The Step III form shall be sent within ten business days after receiving
the Step II response, or if no Step II response was received, within ten business days
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after the date the Step II response was due. 	Id. 	The Grievance Section is the
respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ OO.
When the grievance procedures are not available because the issue presented
is non-grievable, exhausting those procedures is not required. It is well-established
that a prisoner “cannot be required to exhaust administrative remedies regarding
non-grievable issues.” Figel v. Bouchard, 89 F. App’x 970, 971 (6th Cir. 2004); Mays
v. Kentucky Dept. of Corrections, 2018 WL 4603153, at *3 (W.D. Ky. Sept. 25, 2018)
(“It is beyond debate that an inmate cannot be required to exhaust administrative
remedies regarding non-grievable issues.”); Reeves v. Hobbs, 2013 WL 5462147 (W.D.
Ark. Sept. 3, 2013) (“Defendants cannot treat a complaint as non-grievable, and
therefore not subject to the grievance procedure, and then turn around and maintain
the claim fails because [the plaintiff] failed to follow the grievance procedure. As the
well-known proverb states, they cannot have their cake and eat it too.”). 	However,
when other administrative remedies are available, the prisoner is required to exhaust
those remedies prior to filing a federal lawsuit.
When prison officials waive enforcement of these procedural rules and instead
consider a non-exhausted claim on its merits, a prisoner’s failure to comply with those
rules 	will 	not 	bar 	that 	prisoner’s 	subsequent 	federal 	lawsuit. 	Reed-Bey 	v.
Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). 	The Sixth Circuit has explained:
[A] prisoner ordinarily does not comply with MDOCPD 130—and
therefore does not exhaust his administrative remedies under the
PLRA—when he does not specify the names of each person from
whom he seeks relief. 	See Reed-Bey v. Pramstaller, 603 F.3d 322,
324-25 	(6th 	Cir. 	2010) 	(“Requiring 	inmates 	to 	exhaust 	prison
remedies in the manner the State provides—by, say, identifying all
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relevant defendants—not only furthers [the PLRA’s] objectives, but
it 	also 	prevents 	inmates 	from 	undermining 	these 	goals 	by
intentionally defaulting their claims at each step of the grievance
process, 	prompting 	unnecessary 	and 	wasteful 	federal 	litigation
process.”). An exception to this rule is that prison officials waive any
procedural 	irregularities 	in 	a grievance 	when 	they 	nonetheless
address the grievance on the merits. See id. at 325. 	We have also
explained that the purpose of the PLRA’s exhaustion requirement “is
to allow prison officials ‘a fair opportunity’ to address grievances on
the merits to correct prison errors that can and should be corrected
to create an administrative record for those disputes that eventually
end up in court.” Id. at 324.
Mattox v. Edelman, 851 F.3d 583, 590-91 (6th Cir. 2017).
V. Analysis
Simmons filed one grievance before filing his complaint. 	That grievance –
DRF-24-11-2600-17i – was rejected at Step II and Step III. ECF No. 16-3. Further,
the grievance failed to name Defendants Sgt. Palmer or CO Sutten and failed to raise
any of the remaining issues that Simmons asserted in his complaint. 	The Step I
grievance stated:
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Id., PageID.106.
First, Plaintiff failed to name Defendants Sgt. Palmer or CO Sutten in his Step
I grievance. Ultimately, the purpose of the grievance system is to alert prison officials
to problems within their facilities. Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001).
The PD 03.02.130 ¶ (Y) states that to provide adequate notice to officials, the grievant
must provide facts underlying the issue being grieved including the “names of all
those involved” at Step I. 	Issues within the scope of review at Step II and Step III
appeals are limited to those issues addressed on the merits at each step of the
grievance process. 	See Id.; Brown v. McCullick, No. 18-2226, 2019 WL 5436159, at
*3 (6th Cir. Apr. 23, 2019).
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The MDOC requires a prisoner to identify the individuals being grieved, Reed-
Bey, 603 F.3d at 324-25, and the subject matter of the grievance. Mattox, 851 F.3d at
596. An inmate must name each defendant in a properly exhausted grievance before
he files a federal complaint. 	Kean v. Hughes, No. 1:12-cv-847, 2013 WL 5771146 at
*2 (W.D. Mich. Oct. 24, 2013) (“The MDOC had no reason to address a claim against
any other employee”). Where a prisoner fails to name a Defendant in his Step I
grievance, or mentions an individual involved for the first time during the Step III
appeal of the denial of a grievance, the claim against that individual is not properly
exhausted. Id. at *6. Plaintiff failed to name Defendants Sgt. Palmer or CO Sutten
in his grievance, accordingly grievance DRF-24-11-2600-17i did not exhaust claims
asserted against Sgt. Palmer or CO Sutten.
Nor did Plaintiff assert any retaliation claims against Defendant Sgt. Spohn
in grievance DRF-24-11-2600-17i. 	Plaintiff was required to grieve his retaliatory
misconduct claims in a properly filed grievance. 	PD 03.02.130 ¶(P) 9, 11 (“If the
prisoner wishes to pursue a claim that retaliation is the basis for a . . . misconduct
[ticket], they must file a grievance on the sole issue of retaliation and it shall not be
rejected”). Accordingly, it is the opinion of the undersigned that grievance DRF-24-
11-2600-17i failed to exhaust any of the remaining claims asserted by Plaintiff in this
case.
Moreover, grievance DRF-24-11-2600-17i did not properly exhaust any claim
because it was rejected at both Step I and Step III. As previously discussed, “proper
exhaustion” requires that the plaintiff comply with the administrative agency’s
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deadlines and “critical procedural rules,” such as time limits for filing grievances.
Woodford, 548 U.S. at 90−95. 	MDOC policy provides that a grievance shall be
rejected if filed in an untimely manner. 	PD 03.02.130 ¶ (P)(5). 	Grievances are
considered filed on the date they are received by the Department and must be
stamped as such. Id. ¶ (Z). Here, Plaintiff Step II grievance was not received before
it was due. ECF No. 16-3, PageID.105.
Finally, Plaintiff claims that the MDOC grievance policy is ambiguous, making
the exhaustion process unavailable to him. To properly exhaust grievable claims, one
must utilize all steps that the agency holds out and do so properly. Ngo, 548 U.S. at
90. 	Grievable claims are governed by the administrative process laid out in MDOC
P.D. 03.02.130, which requires the grievant to appeal their grievance from Step I to
a Step III appeal to exhaust their claim. 	“The Supreme Court has identified three
situations in which an administrative procedure is unavailable to prisoners and is
therefore 	not 	subject 	to 	the 	exhaustion 	requirement: 	(1) 	‘when 	(despite 	what
regulations or guidance materials may promise) it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved
inmates’; (2) when ‘some mechanism exists to provide relief, but no ordinary prisoner
can discern or navigate it’ because it is ‘so opaque’ or ‘so confusing’; and (3) ‘when
prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.’” Lamb v. Kendrick, 52
F.4th 286 (6th Cir. 2022) (quoting Ross, 578 U.S. 643-44).
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In 	the 	rare 	circumstance 	where 	a 	prisoner 	shows 	that 	administrative
procedure was unavailable, “he is not automatically absolved from the PLRA’s
exhaustion requirement.” Lamb, 52 F.4th at 293 (citing Lee v. Willey, 789 F.3d 673,
677 (6th Cir. 2015)). The Sixth Circuit requires inmates to make “affirmative efforts
to comply with the administrative procedures before analyzing whether the facility
rendered these remedies unavailable.” Lee, 789 F.3d at 677 (quoting Napier v. Laurel
Cnty., 636 F.3d 218, 223 (6th Cir. 2011)). “When a prisoner makes affirmative efforts
to comply but does not succeed, we analyze whether those efforts to exhaust were
sufficient under the circumstances.” Id. (quoting Risher v. Lappin, 639 F.3d 236, 240
(6th Cir. 2011) (internal quotation marks omitted).
In the opinion of the undersigned, Simmons has failed to demonstrate that a
genuine issue of material fact exists as to whether he was thwarted from exhausting
his grievance. 	Simmons has not shown that the grievance process was unavailable
to him. Nor has he shown that the policy was ambiguous or that he filed a relevant
grievance that was rejected based upon a policy that was ambiguous. 	ECF 20,
PageID.135. To the contrary, the record shows that Simmons was able to file a Step
I grievance, filed a Step II appeal, and filed a Step III appeal. 	His grievance was
rejected as untimely at Step II, but even if it was decided on the merits of the
grievance, that grievance was not relevant to the remaining claims asserted in this
complaint. 	Plaintiff has simply failed to show that he was thwarted from filing
grievances.
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VI. Recommendation
The undersigned respectfully recommends that this Court deny Defendants’
motion to strike Plaintiff’s sur-reply and grant Defendants’ motion for summary
judgment due to Plaintiff’s failure to exhaust his administrative remedies.
If the Court accepts this recommendation, this case will be dismissed without
prejudice.
Dated: 	April 23, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
NOTICE TO PARTIES: Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the Court within fourteen
(14) days of receipt of this Report and Recommendation. 	28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). 	Failure to file timely objections
constitutes a waiver of any further right to appeal. United States v. Walters, 638 F.2d
947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).
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