Grove #779585 v. Perala et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL DEJUAN GROVE #779585, 	Case No. 2:25-cv-00201
Plaintiff, 	Hon. Paul L. Maloney
U.S. District Judge
v.
JOSEPH PERALA, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendants Perala,
Kittel, and Mukka’s motion for summary judgment due to Plaintiff’s failure to
exhaust administrative remedies. ECF No. 21. Additionally, the R. & R. addresses
the notice of Suggestion of Death of Defendant Mattice. ECF No. 16.
State prisoner Michael Grove filed a complaint under 42 U.S.C. § 1983 alleging
that 	Defendants 	violated 	his 	Eighth 	Amendment 	rights 	by 	subjecting 	him 	to
excessive force and sexual assault. 	ECF No. 1. 	The remaining Eighth Amendment
claims 	are 	against 	employees 	of 	the 	Michigan 	Department 	of 	Corrections.
Defendants include: Corrections Officer (CO) Perala, CO Beck, CO Loman, CO
Herbert, CO Mattice, CO VanAlstine, CO Kettel, CO Baumann, and Sergeant (Sgt.)
Mukka. ECF No. 6.
First, Defendants CO Perala, CO Kittel, and Sgt. Mukka argue that Plaintiff
failed to exhaust his administrative remedies against them. Second, Defendants filed
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a suggestion of death notifying the Court and remaining parties that CO Mattice is
deceased. It is respectfully recommended that this Court dismiss Defendant Mattice,
pursuant to Rule 25(a)(1), and grant Defendant’s motion in part by dismissing
Defendants Perala and Kittel from this lawsuit without prejudice. 	It is further
recommended that the Court deny Defendants’ motion in part by finding that
Defendant Mukka should not be dismissed because a genuine issue of material fact
exists on the issue of exhaustion.
II. Defendant Mattice
On January 20, 2026, Defendants filed a notice of Suggestion of Death as to
Defendant Mattice under Fed. R. Civ. P. 25(a)(1). 	No motion for substitution has
been filed by any party within the time required by law. 	Accordingly, it is
recommended that Defendant Mattice be dismissed from this lawsuit, pursuant to
Rule 25(a)(1).
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
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,
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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
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).
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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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
(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
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“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
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,
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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.
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
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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.
A prisoner asserting sexual abuse by a prison staff member may report the
allegations verbally or in writing in any manner. MDOC Policy Directive 03.03.140
at ¶ UU. A prisoner may use the prison grievance system to report sexual abuse and
the grievance shall be forwarded to the PREA Coordinator for further handling. Id.
at ¶ VV. If a grievance contains both PREA and non-PREA claims, the PREA claims
are transferred to the PREA Coordinator and the prisoner must refile the non-PREA
claims under the grievance policy. 	MDOC Policy Directive 03.02.130 at ¶ D and
MDOC Policy Directive 03.03.140 at ¶ VV.
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
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
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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
First, 	Plaintiff 	Grove 	concedes 	that 	he 	did 	not 	exhaust 	administrative
remedies against Defendants CO Perala or CO Kittel. ECF No. 25, PageID.148. In
the opinion of the undersigned, Defendants Perala and Kittel should be dismissed
from this action.
Therefore, the only remaining controversy is whether Plaintiff exhausted his
claims 	against 	Defendant 	Mukka. 	Sgt. 	Mukka 	argues 	that 	since 	the 	PREA
investigation did not involve conduct by him, Plaintiff could not have exhausted his
administrative remedies. 	ECF No. 22, PageID.94. 	Grove argues that he exhausted
his claims against Sgt. Mukka by including them in the Step I grievance forwarded
to the PREA Coordinator for investigation and that he cannot control how the claim
is 	investigated. 	Defendants 	have 	attached 	the 	affidavit 	of 	MDOC 	Litigation
Specialist 	Raquepaw, who attests that Sgt. Mukka was not investigated for sexual
abuse:
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ECF No. 22-5, PageID.132.
Grove has submitted a copy of his Step I grievance that he submitted that was
assigned AIM 51664:
ECF No. 25-1, PageID.160.
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Plaintiff asserts that this Step I grievance was transferred to the PREA
Coordinator. 	It appears that the grievance raised Plaintiff’s sexual abuse claims
against Defendant Sgt. Mukka. 	Defendants have not provided any further reply to
Plaintiff’s assertion that this grievance was submitted and forwarded to the PREA
Coordinator. 	Accordingly, in the opinion of the undersigned a genuine issue of
material facts regarding whether Plaintiff exhausted his administrative remedies
against Sgt. Mukka.
V. Recommendation
Therefore, the undersigned respectfully recommends that this Court dismiss
Defendant Mattice, pursuant to Rule 25(a)(1), and grant Defendant’s motion in part
by dismissing Defendants Perala and Kittel from this lawsuit without prejudice. 	It
is further recommended that the Court deny Defendants’ motion in part by finding
that Defendant Mukka should not be dismissed because a genuine issue of material
fact exists on the issue of exhaustion.
If the Court adopts this recommendation, the remaining Eighth Amendment
claims will be against Defendants Mukka, Beck, Loman, Hebert, Vanalstine, and
Baumann.
Dated: 	April 24, 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
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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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