Corbett #829712 v. Leach et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ROBERT CORBETT #829712, 	Case No. 2:25-cv-122
Plaintiff, 	Hon. Jane M. Beckering
U.S. District Judge
v.
MICHAEL LEACH, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses a motion for summary
judgment due to Plaintiff’s failure to exhaust his administrative remedies filed by
Defendants Inspector (Insp.) Michael Leach and Warden Sarah Schroeder, ECF No.
21, Plaintiff’s response in opposition, ECF No. 36, and Defendants’ reply, ECF No.
39.
Plaintiff – state prisoner Robert Corbett – filed a verified civil complaint under
42 U.S.C. § 1983 alleging that Defendants violated his rights under the First, Fourth,
Fifth, Eighth, and Fourteenth Amendments while he was a prisoner at the Marquette
Branch Prison (MBP). ECF No. 1.
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Following 	screening, 	only 	Plaintiff’s 	First 	Amendment 	retaliation 	claims
against Defendants Insp. Leach, Warden Schroeder, and an Unknown Correctional
Officer remain in this case.1
Plaintiff’s allegations for the remaining claims are summarized in the table
below.
Number 	Claim 	Defendant 	Date or
Date Range
of
Incident(s)
1 	First Amendment retaliation for
denial of a job assignment. ECF
No. 1, PageID.3.
Insp. Leach 	November
2024
2 	First Amendment retaliation for
the removal of misconduct charges
regarding the destruction of
Plaintiff’s tablet. Id., PageID. 4.
Insp. Leach 	December
2024
3 	First Amendment retaliation for
removal of Plaintiff’s tablet and
threat to write a “fake threatening
behavior misconduct” against
Plaintiff. Id., PageID. 4-5.
Unknown CO 	December
2024
4 	First Amendment retaliation for
threats of misconduct and
placement in segregation. Id.,
PageID.5.
Warden
Schroeder
December
2024
1 	Plaintiff Corbett consented to a U.S. Magistrate Judge presiding over this
case. ECF No. 5. Following entry of a screening opinion and order dismissing claims
and parties, Plaintiff filed an objection to the undersigned’s screening opinion and
order. ECF No. 17. In this objection, Plaintiff asked that a U.S. District Judge review
his objections. Id. It is important to note that Plaintiff did not withdraw his consent
to a U.S. Magistrate Judge. His objection to the undersigned’s screening opinion and
order remains pending before the Court. However, at the time the objection was filed,
no district judge was assigned to this case. The undersigned recommends that the
Court denies Plaintiff’s objections to the screening opinion and order.
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Insp. Leach and Warden Schroeder assert that Plaintiff’s First Amendment
retaliation claims against them should be dismissed because Plaintiff failed to
exhaust 	his 	claims 	against 	any 	Defendants 	before 	filing 	this 	lawsuit. 	More
specifically, Defendants assert that the only grievance Plaintiff filed in the relevant
timeframe listed only Insp. Leach and was rejected as untimely. ECF No. 21, PageID.
130. 	In response, Plaintiff argues that he did exhaust his administrative remedies
against Insp. Leach through Step III.
The undersigned respectfully recommends that the Court grant in part and
deny in part Defendants’ motion for summary judgment. 	The records before the
Court establish that no genuine issue of material fact remains with respect to the
issue of Plaintiff’s exhaustion of his administrative remedies as to his claim against
Warden Schroeder (Claim 4) or his First Amendment retaliation claim against Insp.
Leach for alleged conduct in November 2024 (Claim 1). 	However, in the opinion of
the undersigned, there remains a genuine issue of material fact as to whether
Plaintiff exhausted his administrative remedies regarding his First Amendment
retaliation claim against Insp. Leach for alleged conduct in December 2024 (Claim 2).
II. 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
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disagreement to require submission to a jury[2] 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).
III. 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.”
2 	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. 	Perttu v.
Richards, 605 U.S. 460, 479, 145 S.Ct. 1793, 1807 (2025).
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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
(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
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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 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).
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
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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
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.
Where the grievance procedures are not available because the issue presented
is non-grievable, exhaustion of prison grievance 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.
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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, where other administrative remedies are available, the prisoner is
required to exhaust those available remedies prior to filing a federal lawsuit. For
example, where an inmate claims that he received a retaliatory false misconduct,
whether a Class I misconduct or a Class II or III misconduct3 , the inmate must first
raise the issue during the Misconduct Hearing. 	Siggers v. Campbell, 652 F.3d 681,
693−94. If the inmate is claiming to have received a retaliatory Class I misconduct,
he or she must then must “file a motion or application for rehearing [of his misconduct
conviction] in order to exhaust his or her administrative remedies before seeking
3 	Violations of written rules within the MDOC are classified as either Class I,
Class II or Class III misconducts. Class I consists of the most severe violations, and
Class III consists of the least severe. 	While Class I misconducts are considered
“major” misconducts and are “subject to all hearing requirements set forth in MCL
791.252”, Class II and III misconducts are considered “minor” misconducts and are
“subject to all requirements currently set forth in Department Administrative Rules
and policy directives for ‘minor’ misconducts.” MDOC Policy Directive (PD) 03.03.103
¶ B (eff. date 07/01/18).
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judicial review of the final decision or order.” Mich. Comp. Laws § 791.255(1); see also
Siggers, 652 F.3d at 693−94.
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 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).4
IV. Grievances Identified by Defendant(s)
In their motion for summary judgment, Defendants Leach and Schroeder
provide Plaintiff’s Step III Grievance Report, which “tracks all prisoner/parolee
4 	In Mattox, the Sixth Circuit held that a prisoner may only exhaust a claim
“where he notifies the relevant prison . . . staff” regarding the specific factual claim
“giving the prison staff a fair chance to remedy a prisoner’s complaints.” 	Id. at 596.
For example, grieving a doctor about his failure to give cardiac catheterization did
not grieve the claim that the doctor erred by not prescribing Ranexa.
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grievances filed at Step III, which have been responded to at Step III.” ECF No. 21-
3, PageID.144 (Affidavit of Departmental Analyst Carolyn Neslon). Thus, the report
shown below identifies that Plaintiff only pursued grievance MBP-24-12-1400-28E
(“MBP-1400”) through Step III in the relevant timeframe.
ECF No. 21-3, PageID.147.
Defendants provide an incomplete version of Plaintiff’s Step I grievance form
for MBP-1400, shown below.
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ECF No. 21-3, PageID.152.
Additionally, Defendants provide the following memorandum from Grievance
Coordinator Bolton notifying Plaintiff of his incomplete grievance form.
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Id., PageID.151.
Defendants also provide the following completed Step I MBP-1400 grievance
form. 	This form indicates that grievance MBP-400 was rejected as untimely
according to MDOC grievance policy.
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Id., PageID.150.
Next, Defendants include Plaintiff’s Step II appeal form and decision, as well
as his Step III appeal reasoning, shown below.
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Id., PageID.149.
Finally, Defendants include the following Step III grievance appeal decision
upholding the rejection.
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Id., PageID.148.
V. Analysis
As shown in the grievance report above, the only grievance that Plaintiff filed
during the relevant timeframe and that he pursued through Step III is MBP-1400.
In response to Defendants’ motion for summary judgment, Plaintiff filed a response
brief along with 30 exhibits, ECF No. 36, and a supporting declaration, ECF No. 37.
But these materials do not indicate that Plaintiff filed some other grievance in this
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matter and pursued it through Step III. 	Thus, MBP-1400 is the only relevant
grievance.
As a starting point, Plaintiff’s Step I grievance in MBP-1400, ECF No. 21-3,
PageID.150, fails to make any allegations against Warden Schroeder. Thus, Plaintiff
has not exhausted his claims against Warden Schroeder.
Second, MBP-1400 sets forth a complaint that Plaintiff has against Insp. Leach
for events on Dec. 10, 2024. Id. 	Thus, this grievance also fails to exhaust Plaintiff’s
First Amendment retaliation claim against Leach for denial of a job assignment in
November 2024. 	Plaintiff made this allegation in his complaint. 	See ECF No. 1,
PageID.3. Plaintiff appears to have included a relevant grievance. See ECF No.1-4,
PageID.17 (MBP-24-12-1321-28E (“MBP-1321”)). 	But MBP-1321 does not appear on
Plaintiff’s Step III Grievance Report, ECF No. 21-3, PageID.147-48, meaning that he
did not pursue it through Step III. 	As a result, the undersigned concludes that
Plaintiff did not exhaust his claim against Insp. Leach for retaliation in November
2024.
That leaves only MBP-1400. 	At Step I in MBP-1400, Corbett appears to
complain that Insp. Leach put him in segregation and issued a misconduct ticket in
retaliation for earlier grievances. 	However, Defendants include two versions of
Plaintiff’s Step I grievance form.
It appears to the undersigned that Plaintiff filed a Step I grievance form on
December 15, 2024, that failed to include on what date Plaintiff attempted to resolve
his 	concerns. 	ECF 	No. 	21-3, 	PageID.152. 	Then, 	it 	appears 	that 	Grievance
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Coordinator Bolton returned the grievance form to Plaintiff with a memorandum
notifying Plaintiff that he did not include the date of attempted resolution. ECF No.
21-3, PageID.151. 	Finally, Plaintiff’s completed Step I MBP-1400 grievance form
was submitted on December 27, 2024. 	Id., PageID.150. 	The completed MBP-1400
grievance indicates that Plaintiff attempted to resolve the issue on December 10 and
13, 2024. Id.
MDOC Policy Directive 03.02.130 specifies that a grievance must be submitted
within 	five 	business 	days 	after 	attempting 	to 	resolve 	a 	grievable 	issue 	with
appropriate staff. 	ECF No. 21-2, PageID.139 (MDOC PD 03.02.130, Section CC).
Plaintiff asserts that the latest date he attempted to resolve the issue was December
13, 2024, but he did not submit the completed grievance until December 27, 2024.
Thus, Plaintiff’s grievance was rejected as untimely.
Ordinarily, grievances that are rejected are not reviewed on the merits and do
not satisfy the exhaustion requirement. 	The issue here is that while it appears as
though Plaintiff filed an incomplete grievance form on December 15, 2024, and then
re-filed a completed form on December 27, 2024, the record is not crystal clear. The
documents Defendants include do not piece together the narrative without requiring
multiple 	assumptions. 	If 	Defendants 	had 	included 	an 	affidavit 	by 	Grievance
Coordinator Bolton setting forth the timeline, the record would likely show that
Plaintiff failed to exhaust. 	However, the record includes no such affidavit, and the
Court is not at liberty to make assumptions unsupported by the record.
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Accordingly, in the opinion of the undersigned, there remains a genuine issue
of material fact as to whether Plaintiff exhausted his administrative remedies
regarding his First Amendment retaliation claim against Insp. Leach for conduct that
allegedly occurred in December 2024. In this case, a bench trial on exhaustion may
be appropriate.
VII. Recommendation
The undersigned respectfully recommends that the Court grant in part and
deny in part Insp. Leach and Warden Schroeder’s motion for summary judgment.
The records before the Court establish that no genuine issue of material fact
remains with respect to Plaintiff’s exhaustion of his administrative remedies as to his
claim against Warden Schroeder (Claim 4) or his First Amendment retaliation claim
against Insp. Leach for alleged conduct in November 2024 (Claim 1). However, in the
opinion of the undersigned, there remains a genuine issue of material fact as to
whether 	Plaintiff 	exhausted 	his 	administrative 	remedies 	regarding 	his 	First
Amendment retaliation claim against Insp. Leach for alleged conduct in December
2024 (Claim 2).
If the Court accepts these recommendations, only claims 2 and 3 from the
claims table will remain.
Number 	Claim 	Defendant 	Date or
Date Range
of
Incident(s)
2 	First Amendment retaliation for
the removal of misconduct charges
regarding the destruction of
Plaintiff’s tablet. Id., PageID. 4.
Insp. Leach 	December
2024
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Number 	Claim 	Defendant 	Date or
Date Range
of
Incident(s)
3 	First Amendment retaliation for
removal of Plaintiff’s tablet and
threat to write a “fake threatening
behavior misconduct” against
Plaintiff. Id., PageID. 4-5.
Unknown CO 	December
2024
Dated: 	June 11, 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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