Klevering #522230 v. Unknown Party #1 et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL BRUCE KLEVERING,
Case No. 1:24-cv-1225
Plaintiff,
Hon. Jane M. Beckering
v.
UNKNOWN PARTY #1, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action by plaintiff Michael Bruce Klevering, a prisoner
in the custody of the Michigan Department of Corrections (MDOC). Plaintiff brought this lawsuit
pursuant to 42 U.S.C. § 1983. 	Plaintiff filed this lawsuit against Corrections Officer (CO)
Christopher Moe and three unknown parties identified as Unknown Party # 1 (Capt. John Doe #1),
Unknown Party #2 (Lt., John Doe #2), and Unknown Party #3 (Assistant Unit Resident Supervisor
(ARUS) Jane Doe #3). 	This matter is now before the Court on defendant Moe’s motion for
summary judgment for lack of exhaustion (ECF No. 12). 1 Plaintiff did not oppose the motion.
I. 	Background
Plaintiff’s complaint is summarized as follows. On or around December 13, 2023,
plaintiff was involved in a fight with gang members, placed in segregation (SEG), and found guilty
of fighting. Compl. (ECF No. 1, PageID.4-5. While in segregation, plaintiff was interviewed by
the Security Classification Committee (SCC) to determine if he should be released into the general
population. Id. During the interview, plaintiff informed the SCC that he was in fear of his safety
1 The Court notes that discovery in this matter was stayed pending resolution of defendant Moe’s motion for summary
judgment. See Order (ECF No. 21).
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and the threat of retaliation from other gang members due to the fight. Id. at PageID.5. The SCC
agreed and retained plaintiff in segregation protective custody pending transfer to another facility.
Id. 	On December 25, 2023, Capt. Doe informed plaintiff that segregation was full and that he
would be moved back to general population. Id. Later that day, CO Moe ordered plaintiff to move
to general and threatened him with a misconduct ticket if he did not. Id. Plaintiff protested the
move to Capt. Doe and ARUS Doe, and told them that he needed protection. Id. at PageID.5-6.
On December 26, 2023, while in route to the chow-hall for lunch, plaintiff was assaulted by one
of the gang members that he had fought with on December 13, 2023. Id. at PageID.6-7.
Plaintiff alleged (in his words),
Defendant’s JD#1, Moe, JD#2, JD#3, were aware of the need to protect me
from a serious assault but were deliberately indifferent to my need for protection
when they forced me to return to general population under the threat of a class 1
misconduct. The Defendant’s caused me to suffer a serious assault that resulted in
injuries that required medical treatment which continues to cause me unnecessary
pain 	and 	suffering 	in 	violation 	of 	the 	Constitution’s 	Eighth 	Amendments
prohibition against cruel and unusal punishment.
Id. at PageID.7-8. Plaintiff seeks compensatory and punitive damages. Id. at PageID.8.
II. 	Summary Judgment
A. 	Legal standard
“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
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(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).
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 a responsive brief as required by W.D. Mich. LCivR 7.2(c) which
requires that “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
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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
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 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.128; 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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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 September 25, 2023). 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
¶ W. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed
form within five business days after the grievant attempted to resolve the issue with appropriate
staff. 	Id. at ¶¶ W, Y, and CC. 	The Policy Directive provides the following directions for
completing grievance forms:
The issue 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). Within five business days after attempting to resolve a grievable
issue with appropriate staff, the prisoner must send the Step I grievance to the appropriate
grievance coordinator. Id. at ¶ CC. 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 ¶ JJ. 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 ¶ NN.
C. 	Discussion
There is no evidence that plaintiff exhausted any grievances against defendant CO
Moe before filing this complaint. The Clerk’s Office docketed the original complaint as filed on
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November 18, 2024. See Compl.3 	Defendant Moe identified one grievance potentially related to
plaintiff’s claims, MCF-24-02-0136-28e (“136”). This grievance identifies the date of the incident
as December 26, 2023. See Grievance 136 (ECF No. 13-3, PageID.79). The grievance does not
identify CO Moe. In addition, the grievance, which was filed on January 23, 2024, was rejected
as an “Untimely Submission at Step I”. See Grievance rejection letter (PageID.79). The rejection
was upheld at Steps II and III. 	PageID.76, 78. 	Based on this record, plaintiff did not properly
exhaust a grievance to support his claims against any of the MDOC Defendants. Jones, 549 U.S.
at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, CO Moe’s motion for summary judgment
should be granted.
2. 	Doe Defendants
As discussed, plaintiff's lawsuit includes three unidentified “Doe” defendants. A
“Doe” defendant listed in a complaint is not a party to a lawsuit. Rather, “Doe defendants are
routinely used as stand-ins for real parties until discovery permits the intended defendants to be
installed.” Hindes v. FDIC, 137 F.3d 148, 155 (3rd Cir. 1998) (internal quotation and citation
omitted). The failure to identify and serve a Doe defendant constitutes failure to prosecute and
warrants a dismissal of that defendant. See Saucier v. Camp Brighton Prison, No. 13-15077, 2016
WL 11468926 at *3 (April 26, 2016), R&R adopted, 2016 WL 3251761 (E.D. Mich. June 14,
2016). 	If the Court adopts this report and grants summary judgment in favor of defendant CO
Moe, then there will be no other party remaining in this lawsuit. Under those circumstances,
3 The Court notes that under the prison mailbox rule, a prisoner’s court papers are deemed filed at the time he
“delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988).
“Under this relaxed filing standard, a pro se prisoner’s complaint is deemed filed when it is handed over to prison
officials for mailing to the court. Cases expand the understanding of this handing-over rule with an assumption that,
absent contrary evidence, a prisoner does so on the date he or she signed the complaint.” Brand v. Motley, 526 F.3d
921, 925 (6th Cir. 2008) (internal citations omitted). Based on the prison mailbox rule, plaintiff’s lawsuit was filed
on November 14, 2024, the date plaintiff signed it. See PageID.9-11.
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plaintiff cannot maintain a lawsuit against three unserved, unidentified “Doe” defendants, and this
Court should dismiss plaintiff's lawsuit without prejudice.
III. 	Recommendation
For these reasons, I respectfully recommend that defendant Moe’s motion for
summary judgment (ECF No. 12) be GRANTED, that plaintiff's claims against the three “Doe”
defendants be DISMISSED without prejudice, and that the lawsuit be terminated.
Dated: January 20, 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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