Wilson #965365 v. Unknown Party #1 et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
HIRAM WILSON #965365, 	Case No. 1:25-cv-00181
Plaintiff, 	Hon. Robert J. Jonker
U.S. District Judge
v.
BRICE SWANSON, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendant’s motion for
summary judgment due to Plaintiff’s failure to exhaust administrative remedies.
(ECF No. 21.)
Plaintiff – state prisoner Hiram Wilson – filed a complaint under 42 U.S.C.
§ 1983 alleging that Defendants violated his Eighth Amendment rights on June 23,
2024, by using excessive force against him when he was removed from his cell. (ECF
No. 1.) 	Two Defendants – Sergeant (Sgt.) Swanson and Corrections Officer (CO)
Hudson – argue that Plaintiff failed to exhaust his administrative remedies against
them. 	Plaintiff also named two John Doe Defendants in his complaint. 	They have
not been identified or served.
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It is undisputed that Plaintiff was on “modified access” to the grievance system,
and that he never properly filed a grievance against Defendants.1 Plaintiff filed one
relevant grievance that was rejected because he failed to obtain a grievance form from
the grievance coordinator, as required for prisoners on modified access. 	Plaintiff
claims that his requests for grievances were improperly denied and that he did not
know Sgt. Swanson’s name at the time he made a request for a grievance form or at
the time he filed his grievance.
Defendants argue that Plaintiff failed to properly exhaust a grievance against
them and he failed to request a grievance form that would at least arguably raise his
alleged excessive force claims against them in accordance with the modified access to
the grievance procedure requirements. 	Defendants argue that Plaintiff’s failure to
make an appropriate request for a grievance form, despite instructions by the
grievance coordinator to do so, requires their dismissal without prejudice.
It is respectfully recommended that the Court grant Defendants’ motion for
summary judgment and dismiss Defendants Sgt. Swanson and CO Hudson from this
case.
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
1 	Pursuant to the Michigan Dept. of Corrections’ Policy Directive (PD) 03.02.130
(eff. Sept. 25, 2023), a prisoner who files an excessive number of improper grievances
may be placed on “modified access”, which requires the prisoner to obtain a grievance
form from the prison’s Grievance Coordinator (GC) prior to filing a Step I grievance.
(ECF No. 22-2, PageID.129 (PD 03.02.130 ¶¶ PP-TT).)
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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
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
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. 	Richards v.
Perttu, 605 U.S. 460, 479, 145 S.Ct. 1793, 1807 (2025).
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“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.”
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
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prison administrators thwart inmates from taking advantage of a grievance process
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 	are 	provided
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
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of the attempted informal resolution. 	Id. at ¶¶ W, CC. 	The inmate submits the
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.
When the grievance procedures are not available because the issue presented
is non-grievable, exhausting those procedures is not required. It is well-established
that a prisoner “cannot be required to exhaust administrative remedies regarding
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non-grievable issues.” Figel v. Bouchard, 89 F. App’x 970, 971 (6th Cir. 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,
when other administrative remedies are available, the prisoner is required to exhaust
those remedies prior to filing a federal lawsuit.
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
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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).
IV. Analysis
Wilson submitted grievance ICF 24-07-0751-28 naming only CO Hudson for
allegedly assaulting him on June 23, 2024. 3 His Step I grievance stated:
3 	Wilson also submitted grievance ICF 24-07-075-28e against John Doe 1 and John
Doe 2 for sexual assault on June 23, 2024. 	(ECF No. 22-3, PageID.142.) 	This
grievance is not relevant to Plaintiff’s complaint.
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(ECF No. 22-3, PageID.141.)
The grievance was rejected because Wilson failed to follow the procedure to
obtain a grievance form while on modified access:
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(ECF No. 23, PageID.153.)
Wilson’s Step II appeal was denied based upon Grievance Coordinator Miller’s
response. 	(ECF No. 23, PageID.155-156.) 	The Step III appeal was rejected, due to
missing a Step II appeal and response. (ECF No. 22-3, PageID.140.)
Wilson 	did 	make 	several 	requests 	for 	grievance 	forms, 	but 	Grievance
Coordinator Miller denied his requests because they were vague. 	(ECF No. 23,
PageID.160-171.) 	Grievance Coordinator Miller further submitted an affidavit
explaining why he denied Wilson’s requests for grievance forms:
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(Id., PageID.149.)
Wilson had previously been informed that while he was on modified access to
the grievance procedures, he must first obtain a grievance form from the Grievance
Coordinator by submitting a request in writing that is “a clear explanation of your
complaint that includes all pertinent information, necessary documents and positive
identification of the staff member involved.” (Id., PageID.157.) In the opinion of the
undersigned, Wilson failed to comply with this requirement and his grievance was
properly rejected. In the opinion of the undersigned, there exists no genuine issue of
material fact and Defendants are entitled to summary judgment.
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V. Recommendation
The undersigned respectfully recommends that this Court grant Defendants
motion for summary judgment and dismiss Sgt. Swanson and CO Hudson without
prejudice due to Plaintiff’s failure to exhaust his administrative remedies.
It 	is 	further 	recommended 	that 	the 	Court 	dismiss 	unserved 	John 	Doe
Defendants 1 and 2 without prejudice under Fed. R. Civ. P. 4(m). 4
If the Court accepts this recommendation, this case will be dismissed.
Dated: 	October 29, 2025 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within
fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b). All objections and responses to objections are governed by W.D. Mich. LCivR
72.3(b). Failure to file timely objections may constitute a waiver of any further right
of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn,
474 U.S. 140 (1985).
4 	Rule 4(m) provides that the Court must, after providing plaintiff with notice,
either dismiss or order service within a specified time frame against a Defendant who
has not been served within 90 days after the complaint was filed.
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