Delaney #671563 v. Schroeder et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
BRASHARD DELANEY #671563, 	Case No. 	2:24-cv-172
Plaintiff, 	Hon. 	Jane M. Beckering
U.S. District Judge
v.
SARAH SHROEDER, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This 	Report 	and 	Recommendation 	(R. 	& 	R.) 	addresses 	Defendant 	Nita
Roberts’s motion to dismiss, ECF No. 38, Plaintiff’s response in opposition, ECF No.
41, and Defendant’s reply, ECF No. 44. 	This R&R also addresses Defendant’s
motion to strike Plaintiff’s sur-reply. 	ECF No. 46.
Plaintiff 	– 	state 	prisoner 	Brashard 	Delaney 	– 	filed 	an 	unverified 	civil
complaint 	under 	42 	U.S.C. 	§ 1983 	alleging 	that 	Defendants 	were 	deliberately
indifferent to his serious medical needs while incarcerated at Marquette Branch
Prison 	(MBP). 	ECF 	No. 	4. 	(Plaintiff’s 	Amended 	Complaint). 	In 	Plaintiff’s
Amended Complaint, he names the following Defendants: Warden Sara Schroeder;
Assistant Deputy Warden Michael James; Lieutenant Unknown Nebecker; Sergeants
Unknown VanAcker, John Doe Sgt. #1, and John Doe Sgt. #2; Grievance Coordinator
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 1
of 15

2
Q. Bolton; Assistant Resident Unit Supervisor Unknown Pressler; Corrections Officer
John Doe C/O #1; Registered Nurses Unknown Supervisor #1, Unknown Supervisor
#2, Jennifer Unknown, Sallie Unknown, Ashley Unknown, Diane Unknown, Jane
Doe Nurse #1, and Jane/John Doe Nurse #3; Pharmacy Worker Jane/John Doe #1;
Doctor Derek J. Falk; and Health Unit Manager Charles Scott. 	ECF No. 4,
PageID.14–18. 	This Court dismissed several Defendants in a screening opinion
issued on May 27, 2025. 	ECF No. 17. 	Following screening, only Plaintiff’s Eighth
Amendment claim for deliberate indifference to Plaintiff’s serious medical need
against Defendants John Doe C/O #1, Unknown Supervisor #1, and Jane/John Doe
Pharmacy #1 remain in the case. 	Jane Doe Pharmacy #1 was identified as
Pharmacy Assistant Nita Roberts, who brings the present motion to dismiss.
The Court usually considers exhaustion issues in an R. & R. addressing a
motion for summary judgment. 	However, as explained below, case law makes clear
that the court may, in limited circumstances, address a Plaintiff’s failure to exhaust
his administrative remedies. 	This is one of those circumstances.
Defendant Roberts asserts that Delaney’s Complaint fails to state a claim
because Delaney must exhaust all administrative remedies before filing a lawsuit.
ECF No. 38, PageID.206. 	In the opinion of the undersigned, Delaney’s Amended
Complaint fails to state a claim for which relief may be granted because there was
not enough time between the alleged conduct and the filing of this lawsuit for Delaney
to exhaust his administrative remedies. 	Accordingly, the undersigned respectfully
recommends that the Court grant Defendant Robert’s motion to dismiss.
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 2
of 15

3
II. 	Factual Allegations
The Court previously issued a screening opinion in this case. 	ECF No. 17.
There, the Court provided the following summary of the relevant factual allegations,
in pertinent part:
Plaintiff is presently incarcerated with the Michigan Department of
Corrections 	(MDOC) 	at 	the 	Marquette 	Branch 	Prison 	(MBP) 	in
Marquette, Marquette County, Michigan. The events about which he
complains occurred at that facility.
On October 11, 2024, the Court received a document from Plaintiff titled
“affidavit.” (ECF No. 1.) In that document, Plaintiff avers that he suffers
from 	chronic 	asthma, 	which 	he 	has 	treated 	with 	two 	different
prescription inhalers. (Id., PageID.1.) On August 30, 2024, Plaintiff
arrived at MBP. 1 (Id.) He was “emergency transferred” there from
Baraga 	Correctional 	Facility 	(AMF) 	in 	Baraga, 	Baraga 	County,
Michigan. 	(Id.) 	Plaintiff 	was 	transferred 	“for 	staff 	assault 	and
possession of a weapon.” (Id.) Plaintiff states that he was found guilty of
fashioning a weapon out of his inhaler. (Id.)
Plaintiff’s 	property 	was 	not 	transported 	with 	him; 	it 	arrived 	on
September 11, 2024. (Id.) It did not include his inhalers. 2 (Id.) On
September 15, 2024, Plaintiff requested a new inhaler. (Id., PageID.2.)
On September 19, a nurse brought an Albuterol inhaler with her to
“med-line.” (Id.) Plaintiff notes that he participates in med-line three
times daily because he receives regular treatments for diabetes. (Id.)
The nurse advised Plaintiff that she could not give him the inhaler
unless he turned in an old one. (Id.) Plaintiff explained that he did not
have an inhaler to exchange. He asked if the nurse could simply bring
the inhaler to med-line so that he could use it and immediately return
it. (Id.)
1 Plaintiff’s affidavit averment states that he arrived on September 30, 2024, but the
chronology of events subsequent to his arrival suggests that he actually arrived on
August 30, 2024. Later submissions confirm that arrival date. (First Am. Compl.,
ECF No. 4, PageID.20.)
2 It is unlikely that Plaintiff expected to receive the inhaler that had been fashioned
into a weapon; thus, it appears that Plaintiff hoped to receive his other inhaler with
his property.
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 3
of 15

4
The nurse brought the inhaler during med-line on September 21, and
Plaintiff used it and returned it. (Id.) The next day, however, Plaintiff
was informed that “Pharmacy confiscated [the] inhaler until Plaintiff
produces [his] old inhaler he can not use [a new inhaler].” (Id.) Because
Plaintiff had no inhaler to return, he could not receive treatment from
an inhaler during med-line.
Plaintiff reports that he typically experiences asthma attacks in the
middle of the night more than three times a week. (Id., PageID.3.) On
September 25, Plaintiff filed a grievance against MBP Health Unit
Manager Charles Scott, to no avail. (Id.)
On September 27, at 4:00 a.m., Plaintiff told MBP Sergeant Neubecker
that he was suffering a bad asthma attack. (Id., PageID.4.) Sergeant
Neubecker indicated she would call health care. (Id.) Health care
personnel never arrived. (Id.) Plaintiff claims that is the pattern when
he complains of asthma attacks. (Id.)
On October 3, Plaintiff kited MBP Warden Schroeder and explained the
problem. (Id.) That same day, Plaintiff filed his affidavit asking the
Court 	to 	impose 	a 	preliminary 	injunction 	compelling 	Defendants
Schroeder, Scott, and an unidentified MBP doctor to provide treatment,
in the form of his prescribed medications, for Plaintiff’s chronic asthma.
(Id.) The Court construed Plaintiff’s affidavit as a complaint.
[…]
In Plaintiff’s first amended complaint, he fills the gaps between his
arrival on August 30 and the receipt of his property on September 11,
2024. Plaintiff reports that on September 1, during morning med-line,
he told Defendant Nurse Jenn that his asthma was flaring up due to the
mace that remained in his hair from AMF. (Id., PageID.20.) Nurse Jenn
told Plaintiff that he would have to wait until he received his property
and that there was nothing she could do because it was the weekend.
(Id.) Plaintiff had an asthma attack that night; he used a brown paper
bag to help him breathe. (Id.)
The following Monday, Plaintiff asked a corrections officer whether his
property 	had 	arrived. 	(Id., 	PageID.21.) 	It 	had 	not. 	(Id.) 	Plaintiff
informed Nurse Jenn. (Id.) Plaintiff was told to wait for his property,
but that if he had a bad asthma attack, to contact medical. (Id.) The next
day, 	September 	4, 	Plaintiff 	filled 	out 	a 	healthcare 	request 	form
regarding his asthma and placed it “in [his] bars.” (Id.) The next day it
was gone, so he assumed it was picked up by medical staff. (Id.)
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 4
of 15

5
As reported in Plaintiff’s affidavit, on September 11, Plaintiff received
his property and discovered there was no inhaler. (Id., PageID.22.) He
complained to Defendant Jane Doe Nurse #1. (Id.) She told Plaintiff to
“kite the doctor.” (Id.) Plaintiff prepared a kite for the doctor and gave it
to a corrections officer. (Id.)
On September 15, as noted in Plaintiff’s initial affidavit, he submitted
another healthcare kite requesting an inhaler. (Id., PageID.22–23.) On
September 19, during morning med-line, he complained to Defendant
Jane 	Doe 	Nurse 	#2 	about 	his 	nighttime 	asthma 	attacks. 	(Id.,
PageID.23.) He informed her that he had sent numerous kites regarding
an inhaler. (Id.) After med-line, he gave a corrections officer another kite
for the doctor. (Id.)
As explained in Plaintiff’s initiating affidavit, a nurse—Defendant
Ashley—brought Plaintiff’s inhaler to evening med-line. (Id.) But she
did not give Plaintiff the inhaler. (Id.) She told him that he had to turn
in his old inhaler to receive the new one. (Id.) Plaintiff explained why
that was not possible and asked if the healthcare staff could bring the
inhaler at med-line. (Id.) Defendant Ashley advised Plaintiff that she
“would ask the R.N. . . . and let [Plaintiff] know at night med-line.” (Id.,
PageID.24.) At night med-line, Defendant Ashley let Plaintiff know that
“the R.N.,” who Plaintiff names as Defendant Unknown Supervisor #1,
told Ashley that Plaintiff had to turn in an inhaler to receive one. (Id.)
On September 20, Defendant Nurse Diane brought an inhaler to evening
med-line. (Id.) Plaintiff was permitted to use it. (Id.) He returned it to
the nurse. (Id.) Plaintiff slept through that entire night. (Id.)
On September 21, at evening med-line, Plaintiff asked either Defendant
Nurse Jenn or Defendant Nurse Diane if he could use the inhaler again.
(Id.) The nurse explained that the pharmacy had “confiscated it.” (Id.,
PageID.25.) 	Plaintiff 	asked 	why. 	The 	nurse 	simply 	“shrugged 	her
shoulders.” 	(Id.) 	On 	September 	25, 	Plaintiff 	completed 	a 	Step 	1
grievance form regarding the matter and turned it in to non-party
Resident Unit Manager Olivier. (Id.) The next day Plaintiff went to
healthcare for a meeting with the dietician. (Id.) While he was out of his
cell, his cell was “shook down.” (Id.) Upon Plaintiff’s return, he was strip
searched by Defendants John Doe Sgt. #1 and John Doe Sgt. #2. (Id.,
PageID.26.) Thereafter, he was moved to the showers, and his cell “was
destroyed” by the sergeants and Defendant Assistant Resident Unit
Supervisor Pressler. (Id.)
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 5
of 15

6
On September 27, at around 11:00 p.m., Plaintiff sought the assistance
of his “neighbor,” Jerome Hairston, because Plaintiff was having an
asthma attack and was not able to catch the attention of Defendant John
Doe C/O #1. (Id.) The combined efforts of Hairston and Plaintiff were not
successful either (Id.) Eventually, Defendant John Doe C/O #1 “grew
tired of Plaintiff and Ha[ir]ston and angrily yelled, ‘inmates that assault
staff don’t get health care.’” (Id.)
Plaintiff continued to experience asthma attacks during that night. (Id.,
PageID.27.) 	During 	the 	early 	morning 	hours 	of 	September 	28,
Defendant Lieutenant Nebecker made her rounds. (Id.) She opened
Plaintiff’s cell door because he had covered the bars with a blanket. (Id.)
Using the blanket as a cover in that way is a violation of MDOC rules;
Plaintiff explained that he did it “because he needed medical attention
and was being ignored by [Defendant John Doe C/O #1].” (Id.) Defendant
Nebecker agreed to “call medical.” (Id.) Nonetheless, Plaintiff continued
to suffer his asthma symptoms and no one came. (Id.) Plaintiff identifies
the person who did not come as Defendant John/Jane Doe #3. (Id.)
On September 29, Plaintiff received a misconduct ticket for misuse of
property, specifically for having a blanket on his bars. (Id., PageID.28.)
The ticket was written by Defendant Sergeant VanAcker. (Id.)
Plaintiff notes that on September 30, “healthcare” received Plaintiff’s
Step 1 grievance.3 (Id.)
On October 3, Plaintiff kited Defendant Warden Schroeder complaining
about not receiving treatment for his asthma and not receiving a receipt,
response, or acknowledgement from Defendant Grievance Coordinator
Q. Bolton. (Id.) Plaintiff also sent Defendant Schroeder another Step 1
grievance. (Id.) Plaintiff notes that he gave those mail communications
to non-party Resident Unit Manager Olivier. (Id.) On that date, Plaintiff
also mailed his affidavit to this Court seeking preliminary injunctive
relief. (Id.)
3 	Later 	in 	the 	complaint, 	however, 	Plaintiff 	notes 	that 	Defendant 	Grievance
Coordinator Q. Bolton received Plaintiff’s grievance on September 30. (First Am.
Compl., ECF No. 4, PageID.31.) Defendant Bolton did not respond until October 22,
when he rejected the grievance. (Id.) Plaintiff also alleges that he has a separate
pending case against Defendant Bolton for violation of Plaintiff’s First Amendment
rights. (Id.) Plaintiff also notes that Defendant Assistant Deputy Warden James is
Defendant Bolton’s supervisor. (Id.)
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 6
of 15

7
On October 15, during evening med-line, Plaintiff asked Defendant
Nurse Sallie if he could get a breathing treatment because he was
having frequent nighttime asthma attacks and the corrections officers
would not call medical. (Id., PageID.29.) Nurse Sallie agreed to ask the
R.N. (Id.) Plaintiff did not receive any treatment, so he also names the
R.N. that Nurse Sallie purportedly asked as Defendant Unknown
Supervisor #2 (Id.)
On October 23, Plaintiff was examined with regard to his asthma
condition. (Id., PageID.30.) Defendant Nurse Christy asked Plaintiff
whether he had any inhalers. (Id.) Plaintiff explained the trouble he had
experienced obtaining treatment for his asthma attacks. (Id.) Nurse
Christy said she would schedule a meeting with Defendant Dr. Falk and
“they would be forced to give Plaintiff inhalers.” (Id.) On October 25, a
man stepped into Plaintiff’s cell and asked if Plaintiff had any inhalers.
(Id.) Plaintiff said no. The man stated, “I will order them for you.” (Id.)
On October 26, Plaintiff received his first inhaler. (Id.) On November 11,
Plaintiff received his second inhaler. (Id.)
Finally, Plaintiff alleges that another prisoner spoke with Defendant
Sergeant VanAcker. (Id., PageID.32.) Defendant VanAcker wanted to
verify with the other prisoner whether the facts that Plaintiff had
purportedly told Defendant VanAcker about the August 30 incident at
Baraga were true. (Id.) The other prisoner told Plaintiff that Defendant
VanAcker 	explained 	that 	“Baraga 	wanted 	some 	retaliation.” 	(Id.)
Plaintiff notes that as of November 24, Defendant VanAcker has written
two ticket against Plaintiff. (Id.)
ECF No. 17, PageID. 106-108.
III. 	Motion To Strike
As an initial matter, Plaintiff filed a sur-reply regarding the motion at issue.
ECF No. 45. 	Defendant argues that the Court should strike ECF No. 45 because
Delaney did not seek leave from the Court to file a sur-reply and the sur-reply
contests issues “largely ignored” in Plaintiff’s response to Defendant’s motion to
dismiss. 	ECF No. 47, PageID.258.
This Court’s Local Civil Rules allow for a response to a dispositive motion and
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 7
of 15

8
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).
Here, Delaney’s sur-reply focuses on the timeliness of his grievance and the
severity of his medical needs. 	ECF No. 45, PageID.249-252. 	Plaintiff’s sur-reply
supplements the arguments presented in his response, ECF No. 42, and addresses
arguments presented in Defendant’s reply, ECF No. 44. 	Considering Plaintiff’s pro
se status and the relevance of the arguments presented, the undersigned accepts
Plaintiff’s sur-reply. 	Accordingly, Defendant’s motion to strike Plaintiff’s sur-reply
is respectfully denied.
IV. Motion to Dismiss Standard
The Federal Rules provide that a claim may be dismissed for “failure to state
a claim upon which relief can be granted.” 	Fed. R. Civ. P. 12(b)(6). 	To survive a
Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim for relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). 	Put differently, if plaintiffs
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 8
of 15

9
do “not nudge[] their claims across the line from conceivable to plausible, their
complaint must be dismissed.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
In determining whether a claim has facial plausibility, a court must construe
the 	complaint 	in 	the 	light 	most 	favorable 	to 	the 	plaintiff, 	accept 	the 	factual
allegations as true, and draw all reasonable inferences in favor of the plaintiff.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Those
factual allegations “must contain either direct or inferential allegations respecting all
the material elements to sustain recovery under some viable legal theory.” 	League
of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (internal
citations omitted). “When a court is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion so
long as they are referred to in the Complaint and are central to the claims contained
therein.” 	Id.
Plaintiff is proceeding pro se. 	As such, his pleadings are subject to less
stringent standards than those prepared by attorneys. 	Estelle v. Gamble, 429 U.S.
97 (1976); Haines v. Kerner, 404 U.S. 519 (1972).
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 9
of 15

10
V. Analysis
Defendant Roberts argues that Delaney’s case should be dismissed because he
failed to pursue any grievances through Step III before filing this lawsuit. 	ECF No.
38, PageID. 213.
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).
In order 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
(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.
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 10
of 15

11
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 provide 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).
The undersigned usually considers the issue of exhaustion at the summary
judgment stage. 	However, Courts in this District have previously stated that it is
appropriate for defendants in a prisoner civil rights action to raise the affirmative
defense of failure to exhaust administrative remedies in a motion to dismiss. 	Jones
v. Tudor, No. 1:08-cv-300, 2009 WL 2595575 at *6 (W.D. Mich. Aug. 20,2009) (citing
Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008)). To decide a motion to
dismiss, the Court may take judicial notice of a plaintiff’s MDOC grievance filings.
See Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) (a court may consider
public records without converting a Rule 12(b)(6) motion into a Rule 56 motion, but
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 11
of 15

12
may only take judicial notice of facts which are not subject to reasonable dispute);
Walker v. Abdellatif, No. 1:07–cv–1267, 2009 WL 579394 (W.D.Mich. March 5,
2009) (taking judicial notice of MDOC prisoner grievance proceedings in deciding
motion to dismiss for lack of exhaustion).
Here, Defendant Roberts argues that it is abundantly clear that Delaney failed
to exhaust because the events at issue allegedly occurred too close in time to when he
filed his Complaint, not leaving any possible time to complete the grievance process.
ECF No. 38, PageID.210. 	Further, Roberts asserts that Delaney did not file a
grievance until September 30, 2024, ten days late under the MDOC grievance
process. 	Id., PageID.211.
Roberts has not included Delaney’s Step III grievance records or the MDOC
Policy Directive on exhaustion. 	However, the policy is publicly available, and this
Court has referenced it in numerous previous exhaustion decisions.
Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective
September 25, 2023) sets forth the applicable grievance procedures for prisoners in
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.
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 12
of 15

13
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 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.
Here, in both the initial and amended complaints, Delaney asserts that he was
first denied an inhaler on September 19, 2024. 	ECF No. 1, PageID.2; ECF No. 4,
PageID.22. 	Delaney filed this lawsuit on October 11, 2024 – 22 days after the first
alleged incident occurred. 	Delaney filed his Amended Complaint on December 2,
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 13
of 15

14
2024. 	ECF No. 4. 	However, a prisoner “may not exhaust administrative remedies
during the pendency of the federal lawsuit.” 	Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999). 	Similarly, this Court has explained that “a prisoner may not save
the cause of action by exhausting new claims asserted in an amended complaint after
the date he filed his original complaint.” 	Cain v. Moran, No. 2:22-cv-00229, 2023
WL 9064520 at *5 (W.D. Mich. Oct. 26, 2023) (citing Mattox v. Edelman, 851 F. 3d
583, 593 (6th Cir. 2017), report and recommendation adopted, No. 2:22-CV-229, 2023
WL 8539738 (W.D. Mich. Dec. 11, 2023). 	Thus, the operative date is October 11,
2024, and twenty-two days is simply an insufficient amount of time to complete the
grievance process and exhaust the available administrative remedies.
Delaney argues that he filed the original “affidavit for injunctive relief” so
quickly because he was “one bad asthma attack away from death and he needed the
intervention of a higher authority then the MDOC officials responsible for his health.”
ECF No. 42, PageID.237. 	Although the Court is sympathetic to Plaintiff’s medical
needs, the Sixth Circuit has explained that that imminent medical need is not a
sufficient excuse for not exhausting his administrative remedies before filing the
present action. 	Arbuckle v. Bouchard, 92 Fed. Appx. 289, 291 (6th Cir. 2004) (citing
42 U.S.C. § 1997e) (“The PLRA does not excuse exhaustion for prisoners under
imminent danger of serious physical injury.”).
Accordingly, in the opinion of the undersigned, Delaney failed to exhaust his
administrative remedies before filing this action.
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 14
of 15

15
VI. 	Recommendation
In the opinion of the undersigned, Delaney’s Complaint is facially implausible
because there was not enough time between the alleged conduct and the filing of this
lawsuit for Delaney to exhaust his administrative remedies. 	Therefore, it is
respectfully recommended that the Court grant Defendant Roberts motion to dismiss.
If the Court accepts this recommendation. Delaney’s Eighth Amendment deliberate
indifference claims against Defendants John Doe C/O #1 and Unknown Supervisor
#1 will remain in the case.
Dated: 	April 15, 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).
Case 2:24-cv-00172-JMB-MV ECF No. 51, PageID.<pageID> Filed 04/15/26 Page 15
of 15