Holman #473131 v. Ballard

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ZACHARY A. HOLMAN, 	Case No. 	2:25-cv-154
Plaintiff, 	Hon. 	Paul L. Maloney
U.S. District Judge
v.
MICHAEL J. BALLARD,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses: Defendant’s motion to
dismiss, ECF No. 22; Plaintiff’s response in opposition, ECF No. 26; and Defendant’s
reply, ECF No. 28.
Plaintiff – state prisoner Zachary A. Holman – filed a verified civil complaint
under 42 U.S.C. § 1983 alleging that Defendant Dr. Michael J. Ballard, D.D.S.,
violated his Eighth Amendment rights by acting with deliberate indifference to his
serious medical needs while Holman was incarcerated at Baraga Correctional
Facility (AMF) in Baraga, Michigan. 	ECF No. 1. 	More specifically, Holman asserts
that he received dental services from Dr. Ballard at AMF beginning in late December
2022 and continuing through September 2023. 	Holman alleges that Dr. Ballard did
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not sufficiently treat multiple dental problems during either of those appointments
and also did not treat Holman’s pain.
Plaintiff previously filed a similar complaint against Dr. Ballard and non-
defendant dental aide Jessica Velmer in Case No. 2:23-cv-56. 	There, the Court
granted Dr. Ballard summary judgment based on Plaintiff’s failure to exhaust his
administrative remedies and terminated him from the case on January 10, 2025.
Case 	No. 	2:23-cv-56, 	ECF 	No. 	184, 	PageID.1305 	(Order 	Adopting 	Report 	and
Recommendation). 	The Court subsequently granted Velmer summary judgment
and dismissed Holman’s case on March 7, 2025. 	After the case closed, Holman
attempted to amend his complaint, which the Court subsequently rejected. 	Case No.
2:23-cv-56, ECF No. 209 (Order Rejecting Amended Complaint).
On July 2, 2025, Holman filed his complaint again in the present case, naming
only Dr. Ballard as a defendant. 	However, in the present complaint, Holman added
additional alleged conduct from March 2023 to September 2023.
Dr. Ballard argues that the case should be dismissed because (1) Plaintiff has
not remedied his failure to exhaust since his previous suit; (2) Plaintiff failed to plead
a cognizable Eighth Amendment violation; and (3) Dr. Ballard is entitled to qualified
immunity. 	ECF No. 23. 	In response, Holman argues “[b]esides for the fact that
this court already reviewed the complaint for this issue, Plaintiff has set forth
multiple claims upon which relief could be granted.” 	ECF No. 26, PageID.125.
This Court previously dismissed Plaintiff’s claim against Dr. Ballard for
treatment provided to Holman through March 2023. 	In his new complaint, Plaintiff
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repeats his earlier claims against Dr. Ballard and adds additional claims for conduct
that allegedly occurred from April 2023 through September 2023. 	The Court has
not considered the issue of exhaustion as to these new claims. 	Accordingly, the
undersigned respectfully recommends that the Court grant in part and deny in
part Dr. Ballard’s motion to dismiss.
II. 	Factual Allegations
In Case No. 2:23-cv-56, the undersigned issued a Report and Recommendation
regarding Plaintiff’s original claims against Dr. Ballard. 	There, the Court included
the following summary of Plaintiff’s factual allegations:
Holman’s factual allegations are straightforward. He says that while he
was incarcerated at the Ionia Correctional Facility (ICF) on or about
March 9, 2022, he conducted a self-examination of his teeth. (ECF No.
15, PageID.63.) During that examination, Holman located multiple
cavities. Holman therefore requested an appointment with ICF dental
services. (Id.) On March 11, 2022, Holman was informed that he was
placed on a list for dental care. Then, on or about June 15, 2022, Holman
was transferred to AMF. (Id.) Holman says that shortly after his
transfer, he reached out to AMF dental services for an appointment.
AMF dental services informed Holman that he was already on a list to
be seen. (Id.)
On November 1, 2022, Holman says that he reached out to AMF dental
services again, marking his communication as “urgent” and indicating
that he had “multiple cavities.” (Id., PageID.63-64.) Defendant Velmer
responded the same day, telling Holman that he was “already on the
list.” (Id., PageID.64.) Holman followed up with dental services on
November 9, 2022, asking who was in charge of making and maintaining
the dental waiting list, and who determined whether an inmate’s dental
issues were “urgent.” On November 21, 2022, Holman followed up again,
this time addressing his communication directly to Velmer. (Id.) Holman
again 	inquired 	as 	to 	how 	the 	dental 	waiting 	list 	was 	made 	and
maintained, how many inmates were on the list, and where he fell on
the list. (Id.) On November 28, 2022, Velmer responded by simply
stating: “You are on the list and will be called out when you are next on
the list.” (Id., PageID.65.)
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On November 30, 2022, Holman sent another “urgent” communication
to AMF dental services, indicating that his multiple cavities were
causing him “daily pain.” On December 2, 2022, Holman filed the
aforementioned grievance complaining that he had been deprived of
dental care for approximately nine months. (Id.) A few days later, on
December 8, 2022, Velmer called Holman and told him that he had been
placed on an emergency list, but that it would still be a few weeks before
he was seen. (Id., PageID.65-66.) Velmer then asked Holman a few
questions about his teeth and told him that she could see cavities in his
x-rays. (Id., PageID.66.) On the same day, former-defendant Dr. Echols
prescribed Holman ibuprofen. And Holman’s Step I grievance was
denied. (Id.)
On December 15, 2022, Holman says that he filed his Step II grievance
appeal stating that his pain management was insufficient, and that
additional delay in his dental care was “undue.” Five days later, on
December 20, 2022, Holman was called to AMF’s medical unit. (Id.)
There, Holman spoke with Defendant Velmer about his cavities, and
about a molar that he wanted filed down. (Id., PageID.67.) Velmer took
x-rays of Holman’s mouth, and then called Dr. Ballard in to see Holman.
After Holman reiterated his concerns to Dr. Ballard, Dr. Ballard filed
down the molar that was bothering Holman. (Id., PageID.68.) Dr.
Ballard then allegedly asked Holman whether he wanted the problem
teeth removed. (Id., PageID.68.) Holman told Dr. Ballard he did not, and
asked whether Ballard could simply fill his cavities. Holman says that
Dr. Ballard responded by stating that Holman “wasn’t going to jump the
list for fillings” and that Holman should send in a request for a dental
cleaning. (Id.) Holman responded by indicating that he had put in
multiple requests for cleanings, and that he submitted the first request
eight 	months 	ago. 	Dr. 	Ballard 	allegedly 	claimed 	that 	this 	was
“impossible” and there was “no way they could be that behind” but
Velmer informed Dr. Ballard that they were in fact that behind on the
segregation list. (Id., PageID.67-68.)
Dr. Ballard then asked Holman whether he had been in segregation
since his arrival. (Id., PageID.68.) When Holman said he had, Dr.
Ballard allegedly stated that this was the reason Holman had not been
seen. Holman then asked Dr. Ballard whether that meant he was
receiving less care than inmates in general population. (Id.) In response,
Dr. Ballard became angry and ended the appointment. Holman says
that he did not receive a response to the Step II grievance appeal filed
December 15, 2022. As such, he filed a Step III grievance appeal on
January 16, 2023 “in accordance with MDOC’s grievance policy.” (Id.)
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On March 15, 2023, Holman received the response to his Step III
grievance. His grievance was rejected because it did not contain the Step
II response—but Holman reiterates that the Step II response was
untimely, and that he did not receive the response until after he mailed
his Step III grievance appeal. (Id.)
On March 28, 2023, Holman says that he was seen by a non-party dental
provider for a teeth cleaning, but that his cavities were not filled, and
he was not provided with any pain relief. He says that another dentist
provided him with “partial but incomplete medical care” after his
appointment with Dr. Ballard, and that he has “not been prescribed any
consistant [sic] pain medication other than the initial prescription that
ended on 12/14/22.” (Id., PageID.70.) Holman says that he continues to
experience 	tooth 	pain 	on 	a 	daily 	basis, 	and 	that 	his 	teeth 	have
deteriorated. (Id.)
Case No. 2:23-cv-56, ECF No. 130, PageID.820-23.
The new complaint continues beyond the dental cleaning on March 28, 2023.
Holman says that he saw Dr. Choi on April 17, 2023, and had four cavities filled.
ECF No. 1, PageID.5. 	And then Dr. Choi extracted a tooth on May 8, 2023. 	Id.
Holman says he saw Dr. Ballard again on May 16, 2023. 	Id. 	Holman says that at
that time, Dr. Ballard declined to treat him or to prescribe pain medication. 	Id.
Holman explains that he was seen by Dr. Choi again on Aug. 23, 2023, and that Dr.
Choi extracted another tooth at that time. 	Id., PageID.16. 	And finally, Holman
saw Dr. Ballard again on Sept. 26, 2023. 	Id. 	Holman says that Dr. Ballard again
refused to treat him. 	Id.
III. 	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
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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
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).
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IV. 	Analysis
This Court previously considered Holman’s claim against Dr. Ballard for
conduct up to March 28, 2023 in Case No. 2:23-cv-56 and concluded that Holman did
not exhaust his administrative remedies for those claims.
As the undersigned explained in the previous R. & R., Holman filed one
relevant Step I grievance with an incident date of November 29, 2022. 	ECF No. 130,
PageID.829. 	But Holman’s initial appointment with Dr. Ballard was on December
20, 2022. 	Id. 	Accordingly, as the undersigned previously explained, “Holman’s sole
grievance in this matter did not concern his allegations against Ballard for treatment
Ballard provided.” 	Id., PageID.833. 	Holman need not plead exhaustion. 	But
Holman has provided the Court with no reason to conclude that the Court’s previous
conclusion regarding his failure to exhaust his previous claims is no longer valid.
Holman filed a new complaint just months after the previous case closed. 	He
repeated the previously dismissed claims and added new allegations for events after
the dental cleaning on March 28, 2023.
Thus, as this Court previously ruled, Holman has failed to exhaust his
administrative remedies regarding his claims against Dr. Ballard in Case No. 2:23-
cv-56, that is, for conduct up to dental cleaning on March 28, 2023. 	The undersigned
respectfully recommends that those claims be dismissed from the instant case.
However, in the present case, Holman added additional alleged incidents
arising after March 28, 2023. 	The Court did not consider these claims in the
previous 	case. 	Accordingly, 	in 	the 	opinion 	of 	the 	undersigned, 	the 	issue 	of
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exhaustion for claims arising after March 28, 2023 should be considered at the
summary judgment stage.
V. 	Recommendation
For the reasons set forth above, the undersigned respectfully recommends that
the Court grant in part and deny in part Defendant’s motion to dismiss.
This Court previously dismissed Holman’s claims against Dr. Ballard for
failing to exhaust administrative remedies as to conduct that allegedly occurred on
or before March 28, 2023. 	Accordingly, the undersigned respectfully recommends
that the Court grant Defendant’s motion to dismiss as to claims based on conduct on
or before March 28, 2023. 	The undersigned respectfully recommends that the Court
deny Defendant’s motion to dismiss as to claims based on conduct arising after
March 28, 2023.
If the Court accepts this recommendation, Holman’s Eighth Amendment
deliberate indifference claim against Dr. Ballard for alleged conduct after March 28,
2023, will remain.
Dated: 	April 22, 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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