Roche #612820 v. Morrison et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
TERRELL ROCHE #612820, 	Case No. 	1:25-cv-312
Plaintiff, 	Hon. 	Paul L. Maloney
U.S. District Judge
v.
UNKNOWN MORRISON, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses Defendants’ motion to
dismiss, ECF No. 23, Plaintiff’s response in opposition, ECF No. 25, and Defendant’s
reply, ECF No. 26. 	This R. & R. also addresses Plaintiff’s motion for leave to file a
sur-reply. 	ECF No. 29.
Plaintiff – state prisoner Terrell Roche – filed an unverified civil complaint
under 42 U.S.C. § 1983 alleging that Defendants – Corrections Officer (CO) Morrison
and Inspector Silinas – violated his constitutional rights while he was incarcerated
at Ionia Correctional Facility (ICF). 	ECF No. 1. 	More specifically, Plaintiff alleges
that Defendants conducted a shakedown of his housing unit and confiscated three
slips of paper that tested positive for marijuana. 	Id., PageID.3. 	Plaintiff asserts
that Defendants falsified the evidence, resulting in Plaintiff serving 15 days of
sanctions and losing his porter position. 	Id. 	This Court construed Plaintiff’s
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 1
of 12

2
complaint to assert claims under the First, Eight, and Fourteenth Amendments.
ECF 	No. 	4. 	Following 	screening, 	only 	Plaintiff’s 	Fourteenth 	Amendment
substantive due process claims against both Defendants remain in the case. 	Id.,
PageID.31.
In the present motion, Defendants assert that Roche’s complaint fails to state
a claim because Roche must exhaust all administrative remedies before filing a
lawsuit. 	In most cases, a plaintiff’s failure to exhaust his administrative remedies
is addressed in a motion for summary judgment. 	Here, however, Defendants assert
that Plaintiff could not possibly have exhausted his remedies because his lawsuit was
filed too soon after the incidents in his complaint. 	The undersigned agrees. 	In the
opinion of the undersigned, Roche’s complaint fails to state a claim for which relief
may be granted because there was not enough time between the alleged conduct and
the 	filing 	of 	this 	lawsuit 	for 	Roche 	to 	exhaust 	his 	administrative 	remedies.
Accordingly, 	the 	undersigned 	respectfully 	recommends 	that 	the 	Court 	grant
Defendants’ motion to dismiss.
II. 	Factual Allegations
The Court previously issued a screening opinion in this case. 	ECF No. 4.
There, the Court provided the following summary of the relevant factual allegations:
Plaintiff is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Ionia Correctional Facility (ICF) in Ionia,
Ionia County, Michigan. The events about which he complains occurred
there. 	Plaintiff 	sues 	ICF 	Inspector 	Unknown 	Silinas 	and 	ICF
Correctional Officer Unknown Morrison in their official and personal
capacities. (Compl., ECF No. 1, PageID.2.)
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 2
of 12

3
Plaintiff alleges that on January 23, 2025, ICF staff conducted a
shakedown of his housing unit. (Id., PageID.3.) He avers that Defendant
Morrison searched his cell and found Plaintiff’s “papers under [his]
pillows with [Plaintiff’s] affirmations written on them.” (Id.) Defendant
Morrison issued Plaintiff a contraband removal slip, stating that she
found three pieces of paper hidden in a book, and that the paper
“appear[ed] to have a waxy substance on it.” (Id.) Defendant Morrison
indicated she gave the paper to Defendant Silinas for field testing, which
resulted in a positive test for marijuana. (Id.) A day later, Defendants
issued Plaintiff a misconduct ticket for substance abuse (marijuana).
(Id.) Plaintiff was ultimately found guilty of the charge and served 15
days’ worth of sanctions. (Id.)
Plaintiff avers that during this process, Defendants never provided him
proof of the field test, never took pictures of the “contraband” and where
it was found, and never turned the “contraband” over to the Michigan
State Police to be tested. (Id.) Plaintiff contends that Defendants falsely
charged him and falsified the evidence. (Id.) Plaintiff supports that
assertion by stating that a few days after the shakedown, he asked
Defendant Morrison why she had lied in the misconduct ticket. (Id.)
Defendant Morrison kept walking and said, “[Be]cause you’re known for
smuggling so why wouldn’t you do it again.” (Id.)
Plaintiff goes on to state that as a result of the misconduct, he lost his
visits, arguing that this amounts to “cruel and unusual punishment.”
(Id.) Plaintiff was placed on grievance restriction and lost his job as a
porter. (Id., PageID.3–4.) Plaintiff alleges further that the falsified
misconduct has caused him to lose financial support from his family
because of the nature of the ticket. (Id.)
Based on the foregoing, the Court construes Plaintiff’s complaint to
assert: (1) a First Amendment claim regarding placement on grievance
restriction; (2) an Eighth Amendment claim regarding his loss of visits;
and (3) Fourteenth Amendment due process claims regarding the
allegedly falsified misconduct, Plaintiff’s loss of his job as a porter, and
his loss of visits. As relief, Plaintiff requests damages, as well as for the
misconduct ticket to be overturned. (Id., PageID.4.) He also asks for the
“so-called evidence” to be provided to the Michigan State Police for
testing, to be reinstated to his job as a porter, a letter of apology from
Defendants, and for Defendants to “be removed from their positions.”
(Id.)
ECF No. 4, PageID. 18-19.
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 3
of 12

4
Roche’s complaint was signed on March 6, 2025, post-marked March 17,
and received in the Clerk’s Office on March 20. 	ECF No. 1.
III. 	Sur-reply
As an initial matter, Plaintiff filed a motion for leave to file a sur-reply. 	ECF
No. 29. 	In response, Defendants argue that there is no basis for Plaintiff to file a
sur-reply because it is merely an attempt to present arguments Plaintiff failed to
include in his response. 	ECF No. 30, PageID. 151.
This Court’s Local Civil Rules allow for a response to a dispositive motion and
then a reply to the response. 	W.D. Mich. LCivR 7.2(c). 	“The court may permit or
require further briefing.” 	Id. 	This Court has noted that “[i]t is well-established
that parties do not have a right to file a sur-reply brief, whether under the Federal
Rules of Civil Procedure or the Local Civil Rules of our district, and both this court
and other federal courts rarely grant leave to file a surreply.” 	Aslani v. Sparrow
Health Sys., No. 1:08-CV-298, 2009 WL 3711602, at *22 (W.D. Mich. Nov. 3, 2009)
(footnote omitted). 	The Court may grant leave to file a sur-reply to afford a party an
opportunity to address new issues raised for the first time in the reply. 	Eldridge v.
Cardif Life Ins. Co., 266 F.R.D. 173, 175 (N.D. Ohio 2010).
Here, Plaintiff’s proposed sur-reply argues that this Court’s screening opinion
already considered whether Plaintiff stated a Fourteenth Amendment claim for
which relief may be granted. 	Considering Plaintiff’s pro se status and the relevance
of 	the 	arguments 	presented, 	the 	undersigned 	accepts 	Plaintiff’s 	sur-reply.
Accordingly, Plaintiff’s motion for leave to file a sur-reply is granted.
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 4
of 12

5
IV. 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
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
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 5
of 12

6
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).
V. Analysis
Defendants argue that Roche’s remaining claims should be dismissed because,
considering the timeline of Roche’s complaint, he could not have pursued any claims
through all three steps of the grievance process before filing the lawsuit. 	ECF No.
38, PageID. 213.
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).
In order 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
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 6
of 12

7
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
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).
As noted in the Introduction, the undersigned usually considers the issue of
exhaustion at the summary judgment stage. 	However, Courts in this District have
previously stated that it is appropriate for defendants in a prisoner civil rights action
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 7
of 12

8
to raise the affirmative defense of failure to exhaust administrative remedies in a
motion to dismiss. 	Jones v. Tudor, No. 1:08-cv-300, 2009 WL 2595575 at *6 (W.D.
Mich. Aug. 20, 2009) (citing Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008)).
To decide a motion to dismiss, the Court may take judicial notice of a plaintiff’s MDOC
grievance filings. 	See Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008)
(a court may consider public records without converting a Rule 12(b)(6) motion into
a Rule 56 motion, but may only take judicial notice of facts which are not subject to
reasonable 	dispute); 	Walker 	v. 	Abdellatif, No. 	1:07–cv–1267, 	2009 	WL 	579394
(W.D.Mich. March 5, 2009) (taking judicial notice of MDOC prisoner grievance
proceedings in deciding motion to dismiss for lack of exhaustion).
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
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,
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 8
of 12

9
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.
Additionally, 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 misconduct1 , the inmate must first
1 	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
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 9
of 12

10
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
judicial review of the final decision or order.” Mich. Comp. Laws § 791.255(1); see also
Siggers, 652 F.3d at 693−94.
Here, Defendants argue that if Roche had grieved the incident on the earliest
date possible, his step Step II appeal would not be due until March 11, 2025. 	ECF
No. 24, PageID.119. 	Additionally, Defendants attach to their brief a Class I
Misconduct rehearing report that states a rehearing took place on May 16, 2025.
ECF No. 24-1, PageID.123. 	Roche’s complaint was signed on March 6, 2025, see ECF
No. 1, PageID.4 (signature page), postmarked on March 17, id., PageID.5, and
received at the Clerk’s office and filed on March 20, 2025 – two months prior to the
rehearing.
In response to Defendants’ motion, Roche concedes that he “filed his lawsuit 8
days before the Step III response.” 	ECF No. 25, PageID.130. 	However, Roche
requests the Court to deny Defendants’ motion to dismiss because he can refile this
action after exhaustion. 	Id. 	It should also be noted that Roche argues in his sur-
reply that this Court did not dismiss his Fourteenth Amendment substantive due
process claims at the screening stage. 	While this assertion is correct, the motion to
“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).
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 10
of 12

11
dismiss now before the Court is an assertion of the affirmative defense of exhaustion.
The Court’s screening opinion did not consider exhaustion. 	Furthermore, Plaintiff
must exhaust his administrative remedies before filing his lawsuit. 42 U.S.C.
1997e(a). 	When a plaintiff fails to completely exhaust his administrative remedies
prior to filing his lawsuit, the lawsuit is dismissed without prejudice, but the case is
still dismissed.
In the opinion of the undersigned, Plaintiff’s complaint fails to state a claim for
which relief may be granted because he failed to exhaust his administrative remedies
before filing the present lawsuit.
VI. 	Recommendation
In the opinion of the undersigned, Plaintiff’s complaint fails to state a claim for
which relief may be granted because the record before the Court reveals that Roche
filed his complaint before grieving the issue through Step III. 	Furthermore, Roche
concedes that he did not grieve through Step III before filing the present lawsuit.
Accordingly, 	the 	undersigned 	respectfully 	recommends 	that 	the 	Court 	grant
Defendants’ 	motion 	to 	dismiss 	based 	on 	Plaintiff’s 	failure 	to 	exhaust 	his
administrative remedies. 	If the Court accepts this recommendation, no claims will
remain in the case.
Dated: 	April 21, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 11
of 12

12
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).
Case 1:25-cv-00312-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/21/26 Page 12
of 12