Rice #490612 v. Nelson et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIVONE ANTOINE RICE,
Case No. 1:25-cv-145
Plaintiff,
Hon. Paul L. Maloney
v.
JESSE NELSON, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action filed by plaintiff Divone Antoine Rice, a prisoner
in the custody of the Michigan Department of Corrections (MDOC). Plaintiff brought this lawsuit
pursuant to 42 U.S.C. § 1983. The following claims survived initial screening: (1) plaintiff’s First
Amendment retaliation claims against defendants Correctional Officers (COs) Jesse Nelson and
Dustin King regarding the shakedown of plaintiff’s person on May 6, 2024; (2) plaintiff’s First
Amendment retaliation claim against COs Nelson, King, and Manietta Russell premised on their
use of force on May 6, 2024; and, (3) plaintiff’s Eighth Amendment excessive force and failure-
to-protect claims against COs Nelson, King, Russell, Jordan Csernyik, Steven Barber, and
Unknown Nutt regarding the May 6, 2024 assault. See Opinion (ECF No. 8, PageID.108).
The record reflects that defendant Steven Barber is deceased and was never a party
to this litigation.1 	This matter is now before the Court on defendants Nelson, King, Russell,
Csernyik and Nutt’s motion for partial summary judgment due to failure to exhaust administrative
remedies (ECF No. 34). Defendants seek summary judgment on all of plaintiff’s claims against
1 The Waiver of Service for Steven Barber was returned as unexecuted with the following remarks, “Per information
obtained from the Michigan Attorney General’s Office Defendant Barber passed away.” Waiver (ECF No. 28).
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CO Russell and CO Csernyik, plaintiff’s First Amendment retaliation claims, and plaintiff’s Eighth
Amendment failure to protect claims. Defendants’ Motion at PageID.221-222. If the Court grants
defendants’ motion, then the lawsuit will consist of an Eighth Amendment excessive force claim
against CO Nelson, CO King and CO Nutt premised on the alleged May 6, 2024 assault. For the
reasons discussed in a previous order, the Court will not consider plaintiff’s untimely response.2
I. 	Background
The relevant allegations of plaintiff’s complaint are as follows.
In Plaintiff’s complaint, he alleges that on May 6, 2024, at IBC [Bellamy
Creek Correctional Facility], he was exercising on the small yard. ([Compl. ECF
No. 1], PageID.11.) Plaintiff states that “in no way was [he] being disruptive or
acting contrary to policy, rules, or regulations.” (Id.) Defendant Nelson yelled at
Plaintiff, stating: “Hey, Prisoner Rice-the-Rat we need a shakedown.” (Id.) Plaintiff
immediately complied, and Defendant Nelson conducted a shakedown of Plaintiff’s
person. (Id.) Defendant King was also present, and King called Plaintiff “Rice-the-
Rat” “multiple times . . . in an attempt to provoke Plaintiff to anger.” (Id.) Defendant
Nelson then stated: “Hey, Rice-the-Rat, you snitched on King and dropped that
[Prison Rape Elimination Act (PREA)] grievance on Gibson . . . we had you
assaulted once but they let you return to the yard. We’re going to personally beat
you [racial slur] and get rid of a rat at the same time.” (Id., PageID.11-12 (ellipses
in original).) Plaintiff was “afraid of being assaulted by and set up by Defendant
Nelson and Defendant King,” so he “walked away towards the basketball court.”
(Id., PageID.12.)
Plaintiff alleges that Defendants Nelson and King “put their fist[s] up as if
in a fighting/boxing posture, stating, ‘fight b[****]; you wrote grievances; this is
what comes with it [racial slur], last chance.’” (Id., PageID.13.) “Plaintiff continued
to retreat to avoid the advancing assault and put his fist up in a defensive posture.”
(Id.) Plaintiff contends that “Defendant Russell then sprayed a chemical agent
(mace) directly in Plaintiff’s face, stating: ‘like that rat?’” (Id.) “Plaintiff continued
to retreat towards the phone in fear.” (Id.) Thereafter, Defendant Nelson struck
Plaintiff “with a flurry of closed fist punches to his face, eyes, cheeks, nose, chin,
and jaw causing the Plaintiff to lose consciousness.” (Id.) Plaintiff regained
consciousness, and Defendant Nelson continued to “land[] a multitude of kicks and
knees to the Plaintiff[’s] face, eyes, nose, cheek, lip, chin, head, and nose.” (Id.,
PageID.14.) Defendants King, Russell, Csernyik, Barber, and Nutt also punched
and kicked Plaintiff in the “head, face, and neck area.” (Id.) Additionally, “the
Defendants all stomped, bent, [and] twisted the Plaintiff[’s] hand and wrist for the
2 The Court notes that plaintiff also filed a motion for summary judgment on the merits of his claims. See Plaintiff’s
Motion (ECF No. 54). The Court will address that motion after the present motion for exhaustion is resolved.
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express purpose of breaking, fracturing, and/or causing damage to the Plaintiff[’s]
hand and wrist.” (Id.) Plaintiff alleges that the “violent beating . . . last[ed]
approx[imately] 20 minutes.” (Id., PageID.15.)
Plaintiff was taken to the medical unit at IBC, and he was subsequently
transported to the emergency room at an outside hospital. (See id., PageID.15, 16.)
“Plaintiff was diagnosed with an array of conditions, including but not limited to
the following: a contusion, hematoma of the head, as well as severe swelling,
inflammation, and bruising tenderness to [the] right side of [his] head and face.”
(Id., PageID.17.) Plaintiff was also diagnosed with a “bone displacement fracture
of the right wrist and closed non-displacement fracture of the fourth metacarpal
bone of the right hand . . . .” (Id.) The non-party emergency room doctor “mandated
that Plaintiff follow up with [an] orthopedics specialist within 7 days.” (Id.)
Plaintiff “returned to IBC later that night where he was placed on involuntary
suicide watch.” (Id.) A non-party sergeant told Plaintiff that he would be “on
constant observation for [his] own protection [because] they tried to kill you earlier
. . . .” (Id., PageID.18.) The non-party sergeant also stated: “You opened a whole
can of worms with those grievances. It’s unlikely they’ll stop trying. You’re out of
here at the first light. This should be a learning lesson to stay away from
grievances.” (Id.)
The next morning, May 7, 2024, Plaintiff was transferred to ICF [Ionia
Correctional Facility]. (Id.) Plaintiff states that he went from level IV at IBC to
level V at ICF. (Id.) When Plaintiff arrived at ICF, he was placed in segregation
where he was locked in his cell for “23–24 hours a day.” (Id.) . . . .
Opinion at PageID.108-110 (internal footnotes omitted). 	Plaintiff seeks monetary damages,
declaratory relief and injunctive relief. Id. at PageID.112.
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).
“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 trial court must conduct its own probing investigation of the record” to
demonstrate the existence of genuine issues of material fact. Id. at 405.3
3 The Court notes that plaintiff included a “verification” in his complaint. See Compl. at PageID.33; 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). However, there are no verified allegations which address
the exhaustion issues raised in defendants’ brief. 	While plaintiff makes the conclusory statement that he “has
exhausted the three step administrative process properly as to all defendants and claims set forth herein this complaint”
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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. 	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). 4 A prisoner must
and refers to grievances in an “Attachment”, there are no grievances attached to the complaint. 	See Compl. at
PageID.10; Attachment (consists of medical records) (ECF No. 1-1).
4 Defendants’ brief included a copy of the March 18, 2019 version of PD 03.02.130 (ECF No. 35-3). However, when
the alleged incidents occurred on May 6, 2024, a later version of the PD applied (i.e., the September 25, 2023 version).
For purposes of this Report, the Court will apply the 2023 version of the PD.
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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
Defendants have identified one relevant grievance, IBC-2405-1155-26A (“1155”).
See Defendants’ Brief (ECF No. 35, PageID.228). The grievance stated (in plaintiff’s words):
On 5-6-24 at or around 5:30 pm on Unit 500 small yard C/O Nelson & C/O
King used accessive force while I was on the ground! C/O Nelson used closed Fist
to Strike me several times in the Face and head area causing Laceration, Bruises,
Swelling, & fractures. (See ER Report and Pictures) While in handcuffs C/O John
Doe twisted my hand / arm until it was Broken. These C/Os violated my 8 and 14
Amendment and MDOC Accessive Force Policy I would like the camera Footage
saved for litigation.
Grievance 1155 (ECF No. 35-2, PageID.281).
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The grievance response identified COs Nelson and King and stated that this
grievance will be investigated. 	Grievance 1155 Step I Grievance Response (ECF No. 35-2,
PageID.282). In his Step II appeal, plaintiff reiterated that his excessive force claim involved CO
Nelson, CO King, and CO “John Doe.” 	PageID.279. 	The Step II appeal was rejected. 	Id. at
PageID.280. 	In his Step III appeal, plaintiff stated that he was dissatisfied with the Step II
response, and referred to new individuals as being grieved, i.e., stated that he was brutally assaulted
“by the grieved. C/O J. Nellson, D. King, M. Russell, J. Csernyk, S. Barber, Nutt.” Step III Appeal
(ECF No. 35-2, PageID.279). The MDOC denied the Step III appeal. PageID.278.
In addressing plaintiff’s grievance, the Court is aware that “the primary purpose of
a grievance is to alert prison officials to a problem, not to provide personal notice to a particular
official that he may be sued” and that “the grievance is not a summons and complaint that initiates
adversarial litigation”. 	Jones, 549 U.S. at 219, quoting Johnson v. Johnson, 385 F.3d 503, 522
(5th Cir. 2004). Under PD 03.02.130, a prison official is not alerted to the “problem” being grieved
unless that problem is identified by the prisoner listing the “[d]ates, times, places and names of all
those involved in the issue being grieved.” Here, the problems raised in plaintiff’s grievance are
that CO Nelson, CO King, and CO “John Doe” used excessive force against him on May 6, 2024.
Those were the matters which the MDOC investigated. Plaintiff’s grievance form: did not name
CO Russell, CO Csernyik, CO Barber or CO Nutt; did not claim that anyone retaliated against
him; and did not claim that anyone failed to protect him. See Grievance 1155 at PageID.281.
Based on this record, Grievance 1155 exhausted only plaintiff’s claim that
defendants Nelson and King used excessive force against him on May 6, 2024. Plaintiff did not
properly exhaust any other claims against defendants. See Jones, 549 U.S. at 218-19; Woodford,
548 U.S. at 90-93. For this reason defendants’ motion for partial summary judgment should be
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granted. 	However, because CO Nutt does not seek summary judgment on the use of excessive
force, he remains in the case on that claim. See Defendants’ Brief at PageID.239-241.5
III. 	Recommendation
For these reasons, I respectfully recommend that defendants’ motion for partial
summary judgment (ECF No. 34) be GRANTED, which means that all claims should be dismissed
except for plaintiff’s Eighth Amendment claim that defendants Nelson, King, and Nutt used
excessive force on May 6, 2024.
I further recommend that defendants Russell and Csernyik be DISMISSED.
I further recommend that the unserved deceased defendant, Steven Barber, be
DISMISSED.
Dated: May 29, 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).
5 In reaching this determination, the Court has considered Perttu v. Richards, 605 U.S. 460, 479 (2025), in which the
Supreme Court held “that parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with
the merits of a claim protected by the Seventh Amendment.” Here, plaintiff's lawsuit alleged that defendants used
excessive force in part for retaliation against plaintiff for filing a PREA grievance. Perttu does not apply here because
(1) the factual issues of exhaustion are not intertwined with the merits of plaintiff’s excessive force and retaliation
claims, and (2) plaintiff did not identify a genuine issue of material fact related to exhaustion which a jury could decide
at trial.
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