Foster #724488 v. DeKuiper et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHEN FOSTER #724488,
Plaintiff, 	Hon. Jane M. Beckering
v. 	Case No. 1:25-cv-112
AUSTIN DEKUIPER, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me on Defendants’ Motion for Summary Judgment raising the
affirmative defense of failure to exhaust. (ECF No. 15.) Plaintiff has failed to respond to the motion
within the time permitted by Western District of Michigan Local Civil Rule 7.2(c).1 Pursuant to
28 U.S.C. § 636(b)(1)(B), I recommend that the Court GRANT the motion and dismiss Plaintiff’s
compliant without prejudice.
I. 	Background
Plaintiff, who is currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Earnest C. Brooks Correctional Facility, filed a complaint pursuant to 42 U.S.C. §
1983 against MDOC employees Correctional Officer (CO) Austin DeKuiper and Lt. Michael
Helder on January 30, 2025, alleging that they retaliated against him in violation of the First
1 Although Plaintiff is proceeding pro se, he is still expected to comply with the applicable court
rules. See Strohmeyer v. Chase Bank USA, N.A., No. 3:17-cv-443, 2018 WL 2669991, at *2 (E.D.
Tenn. June 4, 2018) (“It is correct that pro se parties are expected to comply with the rules of
procedure just as parties represented by counsel must do.”); Jones v. Graley, No. 2:05-cv-773,
2006 WL 1697637, at *1 (S.D. Ohio June 20, 2006) (although federal courts have treated pro se
litigants more leniently, they “are still expected to comply with the procedural rules of the court”).
Case 1:25-cv-00112-JMB-SJB ECF No. 19, PageID.<pageID> Filed 11/12/25 Page 1
of 5

2
Amendment in October and November 2024 while he was confined at the Muskegon Correctional
Facility (MCF) .
Plaintiff alleges that on or around September 18, 2024, he and several prisoners at MCF
complained to CO DeKuiper and his superiors about DeKuiper’s conduct and tattoo. Plaintiff
alleges that in response to the complaints, CO DeKuiper threatened Plaintiff and several other
prisoners with misconducts. (ECF No. 1 at PageID.7–8.) Three weeks later, on or around October
18, 2024, CO DeKuiper issued Plaintiff a misconduct ticket for insolence. Following a hearing,
Plaintiff was found not guilty on the insolence charge. (Id. at PageID.8.)
Plaintiff alleges that CO DeKuiper continued his campaign of retaliation by issuing another
misconduct on November 6, 2024. This time, the charge was disobeying a direct order. Plaintiff
alleges that during the hearing, Lt. Helder retaliated against Plaintiff by refusing to consider
Plaintiff’s defense that CO DeKuiper issued Plaintiff the misconduct in retaliation for being found
not guilty on the insolence ticket and for confronting DeKuiper about his tattoo. (Id.) Accordingly,
Lt. Helder found Plaintiff guilty of the charge without reviewing the video footage. (Id. at
PageID.9.) Plaintiff appealed the misconduct hearing finding and obtained a reversal. (Id.)
Defendants DeKuiper and Helder now move for summary judgment based on Plaintiff’s
failure to exhaust his administrative remedies on his claims against them.
II. 	Motion Standard
Generally, where the non-moving party fails to respond to a motion for summary judgment,
“the district court must, at a minimum, examine the moving party’s motion for summary judgment
to ensure that it has discharged its initial burden.” Miller v. Shore Fin. Servs., Inc., 141 F. App’x
417, 419 (6th Cir. 2005) (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998)).
In addition, because failure to exhaust is an affirmative defense upon which a defendant bears the
Case 1:25-cv-00112-JMB-SJB ECF No. 19, PageID.<pageID> Filed 11/12/25 Page 2
of 5

3
burden of proof, see Jones v. Bock, 549 U.S. 199, 216 (2007), the Court must ensure that “no
reasonable trier of fact could find other than for [Defendants].” Calderone v. United States, 799
F.2d 254, 259 (6th Cir. 1986).
III. 	Discussion
The Supreme Court has held that a prisoner properly exhausts a claim for purposes of 42
U.S.C. § 1997e(a) by complying with the prison’s “deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). In Jones, the Court reiterated:
Compliance with prison grievance procedures, therefore, is all that is required by
the PLRA to “properly exhaust.” The level of detail necessary in a grievance to
comply with the grievance procedures will vary from system to system and claim
to claim, but it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.
Jones, 549 U.S. at 218. A prisoner incarcerated with the MDOC must “pursue a grievance through
all three steps of the grievance process [set forth in MDOC Policy Directive 03.02.130].”
Weatherspoon v. Strahan, No. 18-2210, 2019 WL 5306842, at *1 (6th Cir. June 4, 2019). This
process must be completed at all levels prior to filing an action in federal court. Freeman v.
Francis, 196 F.3d 641, 645 (6th Cir. 1999).
For purposes of Defendants’ motion, Plaintiff’s claims fall under both versions of the
grievance policy in effect as of September 25, 2023, and as of October 21, 2024. However, both
versions contain identical provisions governing exhaustion of claims concerning misconduct
hearing outcomes and retaliatory issuance of misconduct tickets. Under the policy, grievances
challenging “decisions” made in Class I, II, or III misconduct hearings must be pursued through
the appeal process set forth in Policy Directive 03.03.105. Mich. Dep’t of Corr. Policy Directive
03.02.130 ¶ P.9 and 11 (effective 10/21/2023). If the prisoner claims that retaliation was the basis
for the misconduct ticket, he must exhaust his claim through the grievance process. Id. ¶ P.9 and
11.
Case 1:25-cv-00112-JMB-SJB ECF No. 19, PageID.<pageID> Filed 11/12/25 Page 3
of 5

4
A. 	CO DeKuiper
Because Plaintiff alleges that CO DeKuiper issued Plaintiff the misconduct tickets for
insolence and disobeying a direct order in retaliation for Plaintiff’s protected conduct, he was
required to exhaust his claims through the grievance process. In support of their motion on this
claim, Defendants attach a Step III Grievance Report for Plaintiff dated March 14, 2025, which
shows that Plaintiff had not exhausted any grievance arising out of MCF through Step IIII prior to
filing this action. (ECF No. 16-3.) Therefore, CO DeKuiper has met his summary judgment burden
of showing that Plaintiff failed to exhaust his administrative remedies as to his retaliation claim
against DeKuiper.
B. 	Lt. Helder
Plaintiff’s claim against Lt. Helder relates to his refusal to recognize Plaintiff’s retaliation
defense in his decision on the Class II disobeying a direct order misconduct charge. As set forth
above, to exhaust this claim, Plaintiff was required to raise the issue of retaliation during the
hearing and again on appeal. See Siggers v. Campbell, 652 F.3d 681, 693–95 (6th Cir. 2011).
Although Plaintiff raised retaliation during the hearing before Lt. Helder, he failed to raise the
issue in his appeal. Rather, Plaintiff raised a due process issue concerning notice of the charge.
(ECF No. 16-5 at PageID.84.) Accordingly, Lt. Helder has demonstrated that he is entitled to
summary judgment as Plaintiff failed to exhaust his claim through all required steps.
IV. 	Conclusion
For the foregoing reasons, I recommend that the Court grant Defendants’ motion for
summary 	judgment 	(ECF 	No. 	15), 	dismiss 	without 	prejudice 	Plaintiff’s 	claims 	against
Defendants DeKuiper and Helder for lack of exhaustion, and terminate the case.
Case 1:25-cv-00112-JMB-SJB ECF No. 19, PageID.<pageID> Filed 11/12/25 Page 4
of 5

5
Dated: November 12, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Case 1:25-cv-00112-JMB-SJB ECF No. 19, PageID.<pageID> Filed 11/12/25 Page 5
of 5