2:25-cv-00154•Holman #473131 v. Ballard
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1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN ZACHARY A. HOLMAN, Case No. 2:25-cv-154 Plaintiff, Hon. Paul L. Maloney U.S. District Judge v. MICHAEL J. BALLARD, Defendants. / REPORT AND RECOMMENDATION I. Introduction This Report and Recommendation (R. & R.) addresses: Defendant’s motion to dismiss, ECF No. 22; Plaintiff’s response in opposition, ECF No. 26; and Defendant’s reply, ECF No. 28. Plaintiff – state prisoner Zachary A. Holman – filed a verified civil complaint under 42 U.S.C. § 1983 alleging that Defendant Dr. Michael J. Ballard, D.D.S., violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs while Holman was incarcerated at Baraga Correctional Facility (AMF) in Baraga, Michigan. ECF No. 1. More specifically, Holman asserts that he received dental services from Dr. Ballard at AMF beginning in late December 2022 and continuing through September 2023. Holman alleges that Dr. Ballard did Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 1 of 8
2 not sufficiently treat multiple dental problems during either of those appointments and also did not treat Holman’s pain. Plaintiff previously filed a similar complaint against Dr. Ballard and non- defendant dental aide Jessica Velmer in Case No. 2:23-cv-56. There, the Court granted Dr. Ballard summary judgment based on Plaintiff’s failure to exhaust his administrative remedies and terminated him from the case on January 10, 2025. Case No. 2:23-cv-56, ECF No. 184, PageID.1305 (Order Adopting Report and Recommendation). The Court subsequently granted Velmer summary judgment and dismissed Holman’s case on March 7, 2025. After the case closed, Holman attempted to amend his complaint, which the Court subsequently rejected. Case No. 2:23-cv-56, ECF No. 209 (Order Rejecting Amended Complaint). On July 2, 2025, Holman filed his complaint again in the present case, naming only Dr. Ballard as a defendant. However, in the present complaint, Holman added additional alleged conduct from March 2023 to September 2023. Dr. Ballard argues that the case should be dismissed because (1) Plaintiff has not remedied his failure to exhaust since his previous suit; (2) Plaintiff failed to plead a cognizable Eighth Amendment violation; and (3) Dr. Ballard is entitled to qualified immunity. ECF No. 23. In response, Holman argues “[b]esides for the fact that this court already reviewed the complaint for this issue, Plaintiff has set forth multiple claims upon which relief could be granted.” ECF No. 26, PageID.125. This Court previously dismissed Plaintiff’s claim against Dr. Ballard for treatment provided to Holman through March 2023. In his new complaint, Plaintiff Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 2 of 8
3 repeats his earlier claims against Dr. Ballard and adds additional claims for conduct that allegedly occurred from April 2023 through September 2023. The Court has not considered the issue of exhaustion as to these new claims. Accordingly, the undersigned respectfully recommends that the Court grant in part and deny in part Dr. Ballard’s motion to dismiss. II. Factual Allegations In Case No. 2:23-cv-56, the undersigned issued a Report and Recommendation regarding Plaintiff’s original claims against Dr. Ballard. There, the Court included the following summary of Plaintiff’s factual allegations: Holman’s factual allegations are straightforward. He says that while he was incarcerated at the Ionia Correctional Facility (ICF) on or about March 9, 2022, he conducted a self-examination of his teeth. (ECF No. 15, PageID.63.) During that examination, Holman located multiple cavities. Holman therefore requested an appointment with ICF dental services. (Id.) On March 11, 2022, Holman was informed that he was placed on a list for dental care. Then, on or about June 15, 2022, Holman was transferred to AMF. (Id.) Holman says that shortly after his transfer, he reached out to AMF dental services for an appointment. AMF dental services informed Holman that he was already on a list to be seen. (Id.) On November 1, 2022, Holman says that he reached out to AMF dental services again, marking his communication as “urgent” and indicating that he had “multiple cavities.” (Id., PageID.63-64.) Defendant Velmer responded the same day, telling Holman that he was “already on the list.” (Id., PageID.64.) Holman followed up with dental services on November 9, 2022, asking who was in charge of making and maintaining the dental waiting list, and who determined whether an inmate’s dental issues were “urgent.” On November 21, 2022, Holman followed up again, this time addressing his communication directly to Velmer. (Id.) Holman again inquired as to how the dental waiting list was made and maintained, how many inmates were on the list, and where he fell on the list. (Id.) On November 28, 2022, Velmer responded by simply stating: “You are on the list and will be called out when you are next on the list.” (Id., PageID.65.) Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 3 of 8
4 On November 30, 2022, Holman sent another “urgent” communication to AMF dental services, indicating that his multiple cavities were causing him “daily pain.” On December 2, 2022, Holman filed the aforementioned grievance complaining that he had been deprived of dental care for approximately nine months. (Id.) A few days later, on December 8, 2022, Velmer called Holman and told him that he had been placed on an emergency list, but that it would still be a few weeks before he was seen. (Id., PageID.65-66.) Velmer then asked Holman a few questions about his teeth and told him that she could see cavities in his x-rays. (Id., PageID.66.) On the same day, former-defendant Dr. Echols prescribed Holman ibuprofen. And Holman’s Step I grievance was denied. (Id.) On December 15, 2022, Holman says that he filed his Step II grievance appeal stating that his pain management was insufficient, and that additional delay in his dental care was “undue.” Five days later, on December 20, 2022, Holman was called to AMF’s medical unit. (Id.) There, Holman spoke with Defendant Velmer about his cavities, and about a molar that he wanted filed down. (Id., PageID.67.) Velmer took x-rays of Holman’s mouth, and then called Dr. Ballard in to see Holman. After Holman reiterated his concerns to Dr. Ballard, Dr. Ballard filed down the molar that was bothering Holman. (Id., PageID.68.) Dr. Ballard then allegedly asked Holman whether he wanted the problem teeth removed. (Id., PageID.68.) Holman told Dr. Ballard he did not, and asked whether Ballard could simply fill his cavities. Holman says that Dr. Ballard responded by stating that Holman “wasn’t going to jump the list for fillings” and that Holman should send in a request for a dental cleaning. (Id.) Holman responded by indicating that he had put in multiple requests for cleanings, and that he submitted the first request eight months ago. Dr. Ballard allegedly claimed that this was “impossible” and there was “no way they could be that behind” but Velmer informed Dr. Ballard that they were in fact that behind on the segregation list. (Id., PageID.67-68.) Dr. Ballard then asked Holman whether he had been in segregation since his arrival. (Id., PageID.68.) When Holman said he had, Dr. Ballard allegedly stated that this was the reason Holman had not been seen. Holman then asked Dr. Ballard whether that meant he was receiving less care than inmates in general population. (Id.) In response, Dr. Ballard became angry and ended the appointment. Holman says that he did not receive a response to the Step II grievance appeal filed December 15, 2022. As such, he filed a Step III grievance appeal on January 16, 2023 “in accordance with MDOC’s grievance policy.” (Id.) Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 4 of 8
5 On March 15, 2023, Holman received the response to his Step III grievance. His grievance was rejected because it did not contain the Step II response—but Holman reiterates that the Step II response was untimely, and that he did not receive the response until after he mailed his Step III grievance appeal. (Id.) On March 28, 2023, Holman says that he was seen by a non-party dental provider for a teeth cleaning, but that his cavities were not filled, and he was not provided with any pain relief. He says that another dentist provided him with “partial but incomplete medical care” after his appointment with Dr. Ballard, and that he has “not been prescribed any consistant [sic] pain medication other than the initial prescription that ended on 12/14/22.” (Id., PageID.70.) Holman says that he continues to experience tooth pain on a daily basis, and that his teeth have deteriorated. (Id.) Case No. 2:23-cv-56, ECF No. 130, PageID.820-23. The new complaint continues beyond the dental cleaning on March 28, 2023. Holman says that he saw Dr. Choi on April 17, 2023, and had four cavities filled. ECF No. 1, PageID.5. And then Dr. Choi extracted a tooth on May 8, 2023. Id. Holman says he saw Dr. Ballard again on May 16, 2023. Id. Holman says that at that time, Dr. Ballard declined to treat him or to prescribe pain medication. Id. Holman explains that he was seen by Dr. Choi again on Aug. 23, 2023, and that Dr. Choi extracted another tooth at that time. Id., PageID.16. And finally, Holman saw Dr. Ballard again on Sept. 26, 2023. Id. Holman says that Dr. Ballard again refused to treat him. Id. III. 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 Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 5 of 8
6 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 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). Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 6 of 8
7 IV. Analysis This Court previously considered Holman’s claim against Dr. Ballard for conduct up to March 28, 2023 in Case No. 2:23-cv-56 and concluded that Holman did not exhaust his administrative remedies for those claims. As the undersigned explained in the previous R. & R., Holman filed one relevant Step I grievance with an incident date of November 29, 2022. ECF No. 130, PageID.829. But Holman’s initial appointment with Dr. Ballard was on December 20, 2022. Id. Accordingly, as the undersigned previously explained, “Holman’s sole grievance in this matter did not concern his allegations against Ballard for treatment Ballard provided.” Id., PageID.833. Holman need not plead exhaustion. But Holman has provided the Court with no reason to conclude that the Court’s previous conclusion regarding his failure to exhaust his previous claims is no longer valid. Holman filed a new complaint just months after the previous case closed. He repeated the previously dismissed claims and added new allegations for events after the dental cleaning on March 28, 2023. Thus, as this Court previously ruled, Holman has failed to exhaust his administrative remedies regarding his claims against Dr. Ballard in Case No. 2:23- cv-56, that is, for conduct up to dental cleaning on March 28, 2023. The undersigned respectfully recommends that those claims be dismissed from the instant case. However, in the present case, Holman added additional alleged incidents arising after March 28, 2023. The Court did not consider these claims in the previous case. Accordingly, in the opinion of the undersigned, the issue of Case 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 7 of 8
8 exhaustion for claims arising after March 28, 2023 should be considered at the summary judgment stage. V. Recommendation For the reasons set forth above, the undersigned respectfully recommends that the Court grant in part and deny in part Defendant’s motion to dismiss. This Court previously dismissed Holman’s claims against Dr. Ballard for failing to exhaust administrative remedies as to conduct that allegedly occurred on or before March 28, 2023. Accordingly, the undersigned respectfully recommends that the Court grant Defendant’s motion to dismiss as to claims based on conduct on or before March 28, 2023. The undersigned respectfully recommends that the Court deny Defendant’s motion to dismiss as to claims based on conduct arising after March 28, 2023. If the Court accepts this recommendation, Holman’s Eighth Amendment deliberate indifference claim against Dr. Ballard for alleged conduct after March 28, 2023, will remain. Dated: April 22, 2026 /s/ `ttÜàxÇ ixÜÅttà MAARTEN VERMAAT U.S. MAGISTRATE JUDGE 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 2:25-cv-00154-PLM-MV ECF No. 32, PageID.<pageID> Filed 04/22/26 Page 8 of 8
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