Laford #574687 v. Godfrey

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ALFRED LAFORD #574687, 	Case No. 2:24-cv-116
Plaintiff, 	Hon. Hala Y. Jarbou
Chief U.S. District Judge
v.
MERANDA GODFREY and
DUSTIN AUGE,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses Defendant Dustin
Auge’s motion for summary judgment due to Plaintiff’s failure to exhaust his
administrative remedies. (ECF No. 37.)
Plaintiff Alfred Laford, who is currently a federal prisoner, filed his initial
complaint on July 17, 2024. This complaint was filed pursuant to 42 U.S.C. § 1983,
and named three Defendants: 	the Michigan Department of Corrections (MDOC),
Registered Nurse (RN) Meranda Godfrey, and Inspector (Insp.) Dustin Auge. 	(ECF
No. 1.) 	Laford filed an amended complaint on August 13, 2024. 	(ECF No. 6.) 	The
MDOC was subsequently terminated from the case because Laford did not name the
MDOC in his amended complaint. With leave from the Court, Laford filed a second
amended complaint alleging that RN Godfrey and Insp. Auge violated his rights
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under the Eighth and Fourteenth Amendments while he was a prisoner at Marquette
Branch Prison (MBP). (ECF No. 20.)
Laford is not the typical MBP inmate. In 2014, Laford was sentenced to a term
of 207 months for federal crimes in the Southern District of New York. United States
v. Laford, 2024 WL 3778890, 2024 U.S. Dist. LEXIS 144969 at *1 (S.D.N.Y. Aug. 12,
2024). 	Laford, a federal inmate, found himself in Marquette Branch Prison dating
back to at least 2019. See Laford v. United States, 2019 U.S. Dist. LEXIS 199775 at
*1 (S.D.N.Y. Nov. 15, 2019) (Order). Laford says he left MBP for a federal facility in
May 2023. 	(ECF No. 38, PageID.220.) 	Laford is currently incarcerated at FCI
Allenwood Low, a low security federal correctional institution in White Deer,
Pennsylvania.
In his amended complaint, Laford alleges that, while at MBP, RN Godfrey
sexually abused and harassed him on July 18, 2022. 	(ECF No. 20, PageID.113.)
Laford 	further 	asserts 	that 	Insp. 	Auge 	subjected 	him 	to 	prolonged 	solitary
confinement on May 18, 2023. (Id., PageID.114.) Laford contends that the prolonged
solitary confinement was in retaliation for pursuing criminal charges against RN
Godfrey. (Id.)
Insp. Auge asserts that all claims against him should be dismissed due to
Laford’s failure to exhaust administrative remedies. 	(ECF No. 37.) 	In response,
Plaintiff argues that administrative remedies were unavailable to him due to threats
and retaliation. 	(ECF No. 38, PageID.219.) 	In reply, Insp. Auge argues that
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Plaintiff’s allegations are conclusory and not properly verified. 	(ECF No. 40,
PageID.233.)
The undersigned respectfully recommends that the Court grant Defendant
Auge’s motion for summary judgment. 	The records before the Court establish that
no genuine issue of material fact remains with respect to the issue of Plaintiff’s
exhaustion of his administrative remedies.
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
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[1] 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
1 	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. 	Perttu v.
Richards, 605 U.S. 460, 479, 145 S.Ct. 1793, 1807 (2025).
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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
“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
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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
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
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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).
The most common procedure through which a prisoner in MDOC custody
exhausts 	his 	administrative 	remedies 	is 	the 	grievance 	procedure 	set 	forth 	in
Michigan Department of Corrections (MDOC) Policy Directive 03.02.130 (effective on
March 18, 2019). 	According to the Policy Directive inmates must first attempt to
resolve a problem orally within two business days of becoming aware of the grievable
issue, unless prevented by circumstances beyond his or her control. Id. at ¶ Q. If oral
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
oral resolution. 	Id. at ¶¶ Q, W. 	The inmate submits the grievance to a designated
grievance coordinator, who assigns it to a respondent. 	Id. at ¶ Y. 	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 ¶ S (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
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the response was due. 	Id. at ¶ DD. 	The respondent at Step II is designated by the
policy. Id. at ¶ FF.
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 ¶¶ HH. 	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 and Appeals Section
is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ II.
Where the grievance procedures are not available because the issue presented
is non-grievable, exhaustion of prison grievance procedures is not required. It is well-
established that a prisoner “cannot be required to exhaust administrative remedies
regarding 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, where other administrative remedies are available, the prisoner is
required to exhaust those available remedies prior to filing a federal lawsuit. For
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example, where an inmate claims that he received a retaliatory false misconduct,
whether a Class I misconduct or a Class II or III misconduct2 , the inmate must first
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.
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
2 	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
“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).
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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
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).3
V. Grievances Identified by Defendant(s)
In his motion for summary judgment, Insp. Auge provided the MDOC’s Step
III grievance report for Laford. 	(ECF No. 37-3.) 	Insp. Auge claims that a review of
these 	grievances 	will 	demonstrate 	that 	Laford 	has 	failed 	to 	exhaust 	his
administrative remedies.4
3 	In Mattox, the Sixth Circuit held that a prisoner may only exhaust a claim
“where he notifies the relevant prison . . . staff” regarding the specific factual claim
“giving the prison staff a fair chance to remedy a prisoner’s complaints.” 	Id. at 596.
For example, grieving a doctor about his failure to give cardiac catheterization did
not grieve the claim that the doctor erred by not prescribing Ranexa.
4 	Laford 	provided 	documents 	from 	MBP-1176 	with 	his 	second 	amended
complaint. (ECF No. 20, PageID.119-20.)
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(Id., PageID.199-200.)
VII. Analysis
As an initial matter, Laford’s accusations against RN Godfrey stem from
events in July 2022. Laford provides the police report completed by Michigan State
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Police (MSP). (ECF 20, PageID.124-27.) The MSP report indicates that RN Godfrey
was having sex with inmates, including Laford. She was subsequently charged with
a crime. (ECF 20, PageID.123 (felony complaint dated Aug. 25, 2022).) The MDOC
then 	conducted 	a 	PREA 	investigation 	that 	resulted 	in 	a 	report 	listed 	in 	the
Administrative 	Investigations 	Management 	(AIM) 	database. 	(ECF 	40-1,
PageID.238.) 	The summary of the investigation indicates that Godfrey was “placed
on a stop order and escorted off property by MSP.” (ECF 40-1, PageID.241.)
But Laford’s claim against Insp. Auge is based on statements he allegedly
made in May 2023, nearly a year after the events surrounding RN Godfrey. 	(ECF
No. 20, PageID.114.) 	Laford asserts that Insp. Auge retaliated against him for the
criminal charges against RN Godfrey. 	However, Insp. Auge assisted in MSP’s
investigation of Laford’s claims against RN Godfrey. The following portion of MDOC
Litigation 	Specialist 	Douglas 	Kline 	details 	Insp. 	Auge’s 	participation 	in 	the
investigation:
(ECF No. 40-1, PageID.239.)
Regarding exhaustion, it is undisputed that Laford did not exhaust his claims
against Auge in a grievance that he pursued through the three steps of the MDOC
grievance process. 	Laford’s claims against Insp. Auge derive from incidents that
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Laford alleges occurred on May 18, 2023. (ECF No. 20, PageID.114.) The grievance
report above indicates that the MDOC did not receive a Step III grievance after
February 10, 2023. 	Thus, the record indicates that Laford did not exhaust his
remedies via the grievance process during the relevant timeframe.
Additionally, 	Laford 	has 	not 	created 	a 	genuine 	issue 	of 	fact 	regarding
thwarting. 	He claims in his response that he was thwarted from exhausting his
administrative remedies. 	Insp. Auge argues that the Court should not consider
Laford’s thwarting argument because he has failed to properly verify any statement
that includes thwarting allegations.
The materials a court may consider in evaluating a motion for summary
judgment are identified in Fed. R. Civ. P. 56(c). Courts, however, allow a plaintiff to
rely on a “verified complaint,” which has “‘the same force and effect as an affidavit’
for purposes of responding to a motion for summary judgment.” Lavado v. Keohane,
992 F.2d 601, 605 (6th Cir. 1993) (quoting Williams v. Browman, 981 F.2d 901, 905
(6th Cir.1992)). 	To qualify as “verified,” a complaint must be executed in a manner
that meets the requirements set forth in 28 U.S.C. § 1746. Id. In contrast, complaints
that are unverified are not considered Rule 56 evidence. Cooper v. Parker, No. 2:17-
CV-00155, 2019 WL 5273967, at *2 (W.D. Mich. Aug. 29, 2019) (citations omitted),
report and recommendation adopted, No. 2:17-CV-155, 2019 WL 4686423 (W.D. Mich.
Sept. 26, 2019).
Here, Plaintiff’s second amended complaint ends with the statement, “I declare
that the statements above are true to the best of my knowledge, information and
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belief.” 	(ECF No. 20, PageID.118.) 	Plaintiff included the same sentence above his
signature in the original complaint and amended complaint. (ECF No. 1, PageID.27;
ECF No. 6, PageID.56.) 	28 U.S.C. 	§ 1746 is titled “Unsworn declarations under
penalty of perjury.” 	Additionally, the statute states (with emphasis added) that a
verification must be “in writing of such person which is subscribed by him, as true
under penalty of perjury, and dated, in substantially the following form.” The statute
goes on to provide the following form for verification executed with the United States:
“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is
true and correct. Executed on (date). (Signature)”. 28 U.S.C. § 1746 (2) (emphasis
added).
Furthermore, Courts generally require that a verification statement include
“under penalty of perjury” to meet the substantial compliance requirement in 28
U.S.C. § 1746. 	See In re World Trade Center Disaster Site Litigation, 722 F.3d 483,
488 (2d. Cir. 2013) (“Inclusion of the language ‘under penalty of perjury’ is an integral
requirement of the statute for the very reason that it impresses upon the declarant
the specific punishment to which he or she is subjected for certifying to false
statements”); Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.
1988) (rejecting Plaintiff’s unsworn affidavit because “as drafted, it allows the affiant
to circumvent the penalties for perjury in signing onto intentional falsehoods.”).
The undersigned recognizes that pro se plaintiffs, like Laford, are held to a less
stringent pleading standard than parties represented by an attorney. 	Grinter v.
Knight, 532 F.3d 567, 577 (6th Cir. 2008). 	At the summary judgment stage, pro se
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plaintiffs are thus not held to the same technical requirements as represented
parties. Still, pro se plaintiffs must use common sense in demonstrating there exists
a genuine issue of material fact.
In the opinion of the undersigned, Plaintiff’s attempt at verification is
insufficient because it does not include the integral “under penalty of perjury”
language. 	Thus, Plaintiff’s unverified complaint may not be considered as Rule 56
evidence. Accordingly, Plaintiff has not established a genuine issue of material facts
regarding his failure to exhaust administrative remedies.
Alternatively, even if Laford’s statement had been verified, his thwarting
argument is conclusory and vague. 	Laford states “Agues and others repeatedly
threatened his life if he continued to pursue complaints or refused to recant his
allegations.” (ECF No. 38, PageID.2019.) Laford’s conclusory statements cannot rise
to a triable dispute. 	Pierce v. Ocwen Loan Servicing LLC, No. 20-6057, 2021 U.S.
App. 	LEXIS 	27360, 	2021 	WL 	4129526, 	at 	*2 	(6th 	Cir. 	Sept. 	10, 	2021) (a
“conclusory affidavit” that is both unsupported by “specific evidence” and that
“conflicts with all of the document[s]” in the undisputed record “does not create a
genuine dispute of material fact”); Bezusko v. Warren Printing Inc., 156 F.3d 1228
(6th Cir. 1998) (“Conclusory allegations in an affidavit do not create specific fact
disputes sufficient to defeat summary judgment.”).
Additionally, although only raised in his discovery argument, Laford states
that he could not file a Step III grievance because he was moved out of Marquette
Branch Prison to a federal correctional institution. (ECF No. 38, PageID.221.) Laford
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is currently incarcerated at FCI Allenwood Low in White Deer, Pennsylvania. As he
is housed in a low security facility operated by the Bureau of Prisons, Laford has
access to legal mail. 28 CFR § 540.11 (Mail Depositories). Therefore, avenues were
available to Laford to continue the grievance process in federal custody.
Thus, in the opinion of the undersigned, even if Laford’s statement had been
verified, there is no genuine issue of material fact as to Laford’s failure to exhaust
administrative remedies regarding Insp. Auge.
VIII. Rule 56(d) Motion
In Laford’s response, he requests additional discovery to oppose summary
judgment pursuant to Fed. R. Civ. P. 56(d). 	(ECF No. 38, PageID.220.) 	Laford
requests the Court to order Defendants to produce the following:
(Id., PageID.220.)
Rule 56(d) states that “If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its opposition,
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the court may: (1) defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other appropriate
order.” 	Fed. R. Civ. P. 56(d) (emphasis added). 	Laford has not provided the Court
with an affidavit or sworn declaration. As analyzed above, Laford has failed to verify
his pleadings before the Court. Therefore, the undersigned respectfully recommends
that the Court deny Laford’s motion for additional discovery under Rule 56(d).
XIV. Recommendation
The undersigned respectfully recommends that the Court grant Defendant
Auge’s motion for summary judgment. 	The records before the Court establish that
no genuine issue of material fact remains with respect to the issue of Plaintiff’s
exhaustion of his administrative remedies.
The undersigned respectfully recommends that this Court dismiss Laford’s
claim that Defendant Auge subjected him to prolonged solitary confinement on May
18, 2023, due to Laford’s failure to exhaust his administrative remedies.
Additionally, the undersigned respectfully recommends that the Court deny
Laford’s motion for additional discovery under Rule 56(d).
If the Court adopts this recommendation, Defendant Auge will be dismissed
from the case. Only the following claim will remain:
1. 	Laford’s claim that Defendant Godfrey sexually abused and harassed
him on July 18, 2022.
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Dated: 	December 16, 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).
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