DOE 1 et al v. Michigan Department of Corrections et al

Filing 156

OPINION AND ORDER granting in part and denying in part 133 Motion for Summary Judgment on the Basis of Failure to Exhaust Administrative Remedies and Scheduling a Telephone Conference. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,
Plaintiffs,
v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE BASIS
OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND
SCHEDULING A TELEPHONE CONFERENCE
Pending before the court is Defendants’ Motion for Summary Judgment on the
Basis of Plaintiffs’ Failure to Exhaust Administrative Remedies. (Dkt. # 133.) Plaintiffs,
John Does 1-7, have proposed a class seeking injunctive and declaratory relief and
damages arising from their treatment in Michigan Department of Corrections (“MDOC”)
facilities while under the age of eighteen. Defendants argue that the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997(e), bars Plaintiffs’ claims because they failed to
exhaust available administrative remedies before filing this action, as required by the
PLRA. Plaintiffs have filed an opposition, (Dkt. # 144), to which Defendants have
replied, (Dkt. # 150), thus the matter is fully briefed. A hearing was held on September
21, 2015, at which all parties were represented and heard. For the reasons stated
below, the court will grant in part and deny in part Defendants’ motion for summary
judgment.

I. BACKGROUND
Plaintiffs are former youthful prisoners, i.e. prisoners under the age of eighteen,
who were imprisoned alongside adults in MDOC facilities. Though MDOC no longer
houses youths with adults (Defs.’ Mot. at 1 n. 1.), at the time of the conduct alleged in
the complaint prisoners as young as sixteen ate, washed, recreated, worked, and
bunked with adults. Plaintiffs allege that as a result of their placement among adults,
they and similarly situated youthful prisoners suffered an increased risk of sexual
harassment and assault, including from MDOC officers who participated in or turned a
blind eye to the harmful conduct. As a result of the MDOC housing policy, Plaintiffs
assert that they have suffered physical injuries, sexual violence and abuse, and
physiological trauma. The court has allowed the seven current “John Doe” Plaintiffs to
proceed pseudonymously due to concerns about their safety in the MDOC prisons in
which they currently reside.
The court will limit itself to a recitation of the facts pertinent to the exhaustion
analysis at issue. In its previous opinion at Dkt. # 91, the court summarized some of the
details of the particular assaults and incidents of harassment. The facts viewed in the
light most favorable to Plaintiffs are as follows:
A. John Doe 1
Doe 1 was incarcerated in 2012 at the age of seventeen. (Dkt. # 1, Pg. ID 15-16.)
He has been housed in Charles E. Egeler Reception and Guidance Center (“RGC”),
Richard A. Handlon Correctional Facility (“MTU”), and Bellamy Creek Correctional
Facility (“IBC”). (Id.) According to Doe 1, he suffered harassment and a number of
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sexual and physical assaults at the hands of his adult cellmates and other prisoners.
(Id.) He reported these incidents orally to corrections officers, his emotions therapy
teacher, and participated in a meeting with a deputy warden and other prison
administrators where he described, in basic terms, some of the sexual assaults he had
suffered. (Dkt. # 144-4, Pg. ID 3247, 3249.) Plaintiffs have not asserted that Doe 1
attempted to formally grieve any of the incidents at issue in this litigation.
B. John Doe 2
Doe 2 was incarcerated in 2011 at the age of sixteen. (Dkt. # 1, Pg. ID 17-18.)
He has been housed at RGC, Thumb Correctional Facility (“TCF”), and Oaks
Correctional Facility (“ECF”), (Id.). Doe 2 alleges that he suffered physical and sexual
assaults by other prisoners and believes that a corrections officer facilitated some of
those physical assaults by opening his cell door to his attackers. (Dkt. # 144-5, Pg. ID
3255-59.) He reported some of these incidents to health professionals at the prison,
though he later recanted. (Id. at Pg. ID 3263-65.) He also orally reported some of the
incidents to corrections officers. (Id. at 3264.) In 2014, Doe 2 was threatened with
sexual assault, which he claims he reported by sending written correspondence to the
warden, but received no response. (Dkt. # 144-5, Pg. ID 3262). That incident and report
occurred after Doe 2 reached the age of eighteen. Plaintiffs have not asserted that Doe
2 attempted to formally grieve any of the incidents at issue in this litigation.

C. John Doe 3
3

Doe 3 was incarcerated in 2010 at the age of sixteen. He has been housed at
RGC, TCF, and Chippewa Correctional Facility (“URF”). (Dkt. # 1, Pg. ID 18-20.) Doe 3
claims he suffered a number of physical and sexual assaults at the hands of other
prisoners, some of which occurred within the sight of corrections officers who ignored
the conduct. (Dkt. # 144-6, Pg. ID 3280.) He was also searched by corrections officers
who, as he describes, grabbed his genitalia until he felt pain. (Id. at Pg. ID 3279). Doe 3
filed a grievance against a corrections officer when he failed to respond to Doe 3's
report of a physical assault. (Dkt. # 144-6, Pg. ID 3281.) He never received a response
to the grievance and did not file a Step II grievance because, as he stated, “I didn’t
know how long you had to take before the grievance came back. Then after so long . . .
I feel like it was too late.” (Id.) Doe 3 also stated in deposition that “there’s some
grievances that I wrote that I know that they ripped up because they ripped them up in
front of my face.” (Dkt. # 133-8, Pg. ID 2831).
D. John Doe 4
Doe 4 was incarcerated at the age of sixteen. (Dkt. # 1, Pg. ID 20-21.) He has
been housed only at TCF. (Id.) He asserts that he was sexually assaulted by a female
corrections officer but never reported the incident to anybody because he feared he
would not be believed or would be accused of misconduct. (Dkt. # 144-7, Pg. ID 3286,
3289). Plaintiffs have not asserted that Doe 4 attempted to formally grieve any of the
incidents at issue in this litigation.

E. John Doe 5

4

Doe 5 was incarcerated in 2010 at the age of sixteen. (Dkt. # 144-8, Pg. ID
3292.) He has been housed at RGC, TCF, Earnest C. Brooks Correctional Facility
(“LRF”), URF, and Carson City Correctional Facility (“DRF”). (Dkt. # 1, Pg. ID 21-23.) He
contends that he suffered a number of prisoner on prisoner sexual assaults, and was
also subjected to inappropriate pat-downs by female corrections officers. (Id. at Pg. ID
3295.) Doe 5 orally reported to an assistant resident unit supervisor and a corrections
officer that he was being pressured for sex and money by other prisoners, after which
the prison conducted an investigation. (Dkt. # 144-8, Pg. ID 3293-94, 3303.) He also
reported some of the sexual assault activity to other prisoners, but did not report that
activity to any prison officials. (Dkt. # 144-8, Pg. ID 3299, 3302.) Plaintiffs have not
asserted that Doe 5 attempted to formally grieve any of the incidents at issue in this
litigation.
F. John Doe 6
Doe 6 was incarcerated at the age of seventeen. (Dkt. # 1, Pg. ID 23-24.) He has
been housed at RGC, MTU, Gus Harrison Correctional Facility (“ARF”), and Marquette
Branch Prison (“MBP”). (Id.) Before being imprisoned he was placed in special
education classes based on learning disabilities that affected his reading and spelling.
(Dkt. # 144-9, Pg. ID 3307.) While in prison, other prisoners have sexually harassed and
assaulted Doe 6. (Id. at Pg. ID 3311.) He requested medical assistance in writing after
he was moved from one prison to another. (Id. at Pg. ID 3312.) Shortly after the medical
appointment, a prison investigator interviewed Doe 6 about the incident. (Id.) Plaintiffs
have not asserted that Doe 6 attempted to formally grieve any of the incidents at issue
in this litigation.
5

G. John Doe 7
Doe 7 was incarcerated at the age of seventeen. (Dkt. # 1, Pg. ID 24-25.) He has
been housed only in RGC and TCF. (Id.; Dkt. # 144-10, Pg. ID 3319.) He claims he was
the victim of an attempted sexual assault. (Id. at Pg. ID 3318-19.) He orally complained
to a corrections officer and obtained grievance forms, but never filled them out because
he didn’t know how to fill them out and stated, “I felt like they wasn’t going to help me
anyway.” (Id. at Pg. ID 3319.) Plaintiffs have not asserted that Doe 6 formally grieved
any of the incidents at issue in this litigation.
II. STANDARD
A court will enter summary judgment only when “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). “In deciding a motion for summary judgment, the court must view the
evidence in the light most favorable to the non-moving party, drawing all reasonable
inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir.
2003). The movant has the initial burden of showing the absence of a genuine dispute
as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-movant, who must put forth enough evidence to show that there
exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)
(citation omitted). The non-movant “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita v. Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Additionally, the court’s role is not to weigh the
evidence and rule on the truth of the matter, but to determine whether there is a genuine
issue to be considered at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
6

(1986). Summary judgment, therefore, is not appropriate when “the evidence presents a
sufficient disagreement to require submission to a jury.” Id. at 251–52 (1986).
III. DISCUSSION
The pending motion for summary judgment presents two questions. First, have
Plaintiffs properly exhausted MDOC’s administrative remedies? And second, if Plaintiffs
have failed to exhaust, is there some reason the court should, nonetheless, allow the
claims to proceed? That is, is there any indication that the facts of this case might
provide grounds for the exhaustion requirement to be excused or relaxed? The court will
take these issues in turn.
A. Whether Plaintiffs Have Exhausted MDOC’s Administrative Remedies
The parties disagree over what constitutes proper exhaustion. Accordingly, the
court will first determine what is required for a prisoner to properly exhaust his claims,
and then analyze whether any Plaintiff has properly exhausted.
1. The Exhaustion Requirement
Under the PLRA, “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correction facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The PLRA itself does not provide the method of
exhaustion, rather, “it is the prison’s requirements . . . that define the boundaries of
proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal quotation marks
omitted). “Compliance with prison grievance procedures . . . is all that is required by the
PLRA to properly exhaust.” Id.

7

Looking to MDOC’s procedures, Policy Directive (“PD”) 03.02.130 (eff. 07/09/07)
requires a prisoner to participate in a multi-step grievance process, explained in brief
here, in order to properly exhaust his claim under the PLRA. ¶ B. First, within two days
of discovering a problem, prisoners are directed to attempt to informally resolve their
problem with the staff member involved. Id. at ¶ P. If that fails, the prisoner must file a
Step 1 grievance within five days of the attempted resolution. Id. If the prisoner is
dissatisfied with the response, or if the prisoner does not receive a timely response, he
can file a Step II grievance within ten days. Id. at ¶ BB. Similarly, if a prisoner receives
an unsatisfactory response or no response at Step II, he can file a Step III grievance
within ten days. Id. at ¶ FF. Complaints filed by prisoners “serve to exhaust a prisoner’s
remedies only when filed as a grievance through all three steps of the grievance
process.” ¶ B.
Plaintiffs argue that “administrative remedies for sexual assaults are not limited to
the grievance procedure.” Def.’s Opp. at 18. Specifically, they claim that MDOC PD
03.03.140, concerning sexual misconduct, “establishe[s] multiple avenues of
administrative exhaustion of remedies in cases of sexual misconduct” and “[u]se of any
of these various administrative processes satisfies the exhaustion requirement.” Id. at
19. For the reasons explained below, the court rejects this contention and finds that the
formal grievance process is the only method of exhaustion that MDOC has made
available to Plaintiffs.
The clear text of MDOC PDs 03.03.140 and 03.02.120 belie Plaintiffs’ assertion
that any other method of raising concerns to prison staff serves to exhaust a claim. PD
03.03.140 states, “[c]omplaints filed by a prisoner regarding conduct prohibited by this
8

policy shall serve to exhaust a prisoner’s administrative remedies only when filed as a
grievance through all steps of the grievance process in compliance with PD 03.02.130
“Prisoner/Parolee Grievances.” ¶ R (eff. 12/29/10) (emphasis added). Also, PD
03.02.130, governing the grievance process, has reciprocal language requiring
complaints of sexual misconduct to be exhausted through the grievance process.
“Complaints . . . serve to exhaust a prisoner’s administrative remedies only when filed
as a grievance . . . . This includes but is not limited to complaints of conduct in violation
of PD 03.03.140 ‘Prohibited Sexual Conduct Involving Prisoners.’” PD03.02.130 ¶ B.
While MDOC has devised ways to address prisoner complaints, including sexual
assault complaints, through methods less formal than the grievance process, there is no
reason to believe these other methods serve to exhaust claims under the PLRA. “[I]t is
the prison’s requirements . . . that define the boundaries of proper exhaustion.” Jones v.
Bock, 549 U.S. 199, 218 (2007) (internal quotation marks omitted). Plaintiffs are
mistaken in assuming that just because a prison provides informal mechanisms for
addressing problems, that such mechanism must also serves to exhaust claims under
the PLRA.
The sexual misconduct policy states that complaints may be reported to certain
compliance administrators, any Department employee, or through the sexual assault
hotline. PD 03.03.140 ¶ O. In general, “allegations may be reported verbally or in
writing, including through the grievance process.” Id. (emphasis added). This last
phrase shows that MDOC, sensibly, has created a number of reporting mechanisms,
some within the grievance process and some outside of it. Thus, while sexual
misconduct may be reported with a grievance that starts the path to exhaustion, this
9

does not make every other method of reporting sexual misconduct an alternative path to
exhaustion. For example, a prisoner may call the sexual assault hotline, but there is no
indication in the policy that a call to the hotline exhausts a claim or even begins the
exhaustion process.
This conclusion is supported by the purpose of the PLRA as articulated by the
Supreme Court. “The PLRA attempts to eliminate unwarranted federal-court
interference with the administration of prisons, and thus seeks to ‘afford corrections
officials time and opportunity to address complaints internally before allowing the
initiation of a federal case.’” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Proper
exhaustion allows the prison a full and fair opportunity to address complaints by
requiring the prisoner to escalate the matter to such a level and in such a manner as to
allows decisionmakers the chance to respond. “Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly structure on the course of
its proceedings.” Id. Quicker, less formal methods of raising a complaint offer prisoners
easier access to fast solutions, but do not necessarily constitute proper exhaustion. It is
not surprising that MDOC has created both a formal multi-step grievance process for
the purpose of PLRA exhaustion, and other faster, informal reporting processes that
allow for rapid responses to emerging issues.
With the understanding that only the formal grievance process laid out in PD
03.02.130 can exhaust a prisoner’s remedies under the PLRA, the court will now
consider whether any of the John Does have properly exhausted their claims.
2. Application to John Doe 1-7
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Given that proper exhaustion requires a prisoner to advance through all three
levels of the grievance process, it is indisputable that no Plaintiff has properly
exhausted. Defendants have carried their burden at this stage by showing that no John
Does, except John Doe 3, filed a grievance about the issues in this litigation. John Doe
3 filed one grievance at the Step 1 level, but when he received no response he failed to
file a Step 2 grievance. As explained above, when a prisoner receives no response or
an untimely response, he is able to advance to the next step in the grievance process.
PD 03.02.130 ¶ BB. Failure to do so means that the prisoner has not complied with the
full process and has failed to exhaust. Thus, this court will find that, even viewing the
evidence in the light most favorable to Plaintiffs, no John Doe properly exhausted his
claims.
B. Whether Plaintiffs are Excused From Exhaustion or Subject to a Relaxed
Exhaustion Requirement
Given that Plaintiffs’ claims are not properly exhausted, the court must next look
to see if Plaintiffs could establish any reason they should be excused from the
exhaustion requirement. Plaintiffs advance four theories on which they argue the court
could excuse or relax the exhaustion requirement : 1) the exhaustion requirement
should be relaxed or excused because of the John Does’ status as minors, 2) MDOC
does not allow prisoners to grieve the type of complaints advanced in this litigation, 3)
as to some John Does, developmental and learning disabilities rendered the grievance
process unavailable to them, and 4) prison employees thwarted Plaintiffs’ efforts to
submit grievances so that administrative remedies were not reasonably available. The
court addresses each argument seriatim.
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1. Plaintiffs’ Juvenile Status
Plaintiffs argue that because of their status as juveniles, they should be afforded
some level of flexibility in meeting the PLRA’s exhaustion requirement. Plaintiffs cite J.P.
v. Taft, 439 F. Supp. 2d 793, 826 (S.D. Ohio 2006), a case in which a district court
found juvenile status to be “an integral element to its exhaustion analysis.” This court
has previously noted, in its Order Regarding Scope of Discovery (Dkt. # 130), the
possible import of juvenile status. Upon fuller examination, however, the court will not
relax or create an exception to the PLRA’s exhaustion requirement based on a
prisoner’s status as a youth.
The sole question is whether, under the PLRA, youthful inmates are treated
differently than adult inmates. This is a pure question of statutory interpretation, and the
court, as always, begins with the text of the statute. Lamie v. United States Trustee, 540
U.S. 526, 534 (2004). “It is well established that ‘when the statute’s language is plain,
the sole function of the court . . . is to enforce it according to its terms.’” Id. (quoting
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000).
Additionally, “[a]s a general matter, courts should be loath to announce equitable
exceptions to legislative requirements or prohibitions that are unqualified by the
statutory text.” Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 376
(1990). “[T]he simple fact is that, as a policy matter, whether an exception should be
created is a question for legislative rather than judicial judgment. United Metal Products
Corp. v. National Bank of Detroit, 811 F.2d 297, 300 (1987) (citing United States v.
Rutherford, 442 U.S. 544, 559 (1979)). “Only when a literal construction of a statute

12

yields results so manifestly unreasonable that they could not fairly be attributed to
congressional design will an exception to statutory language be judicially implied.” Id.
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). That section defines a
“prisoner” as “any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal
law . . . .” Id. at § 1997e(h) (emphasis added). The statutory language “adjudicated
delinquent” shows that Congress specifically contemplated juveniles when writing the
law. See Lewis v. Gagne, 281 F. Supp. 2d 429, 433 (N.D.N.Y. 2003) (“The plain
meaning of [§ 1997e(h)’s] language clearly includes juveniles.”).
While the word delinquent has other meanings in other contexts, such as “past
due”, Delinquent, BLACK’S LAW DICTIONARY (10th ed. 2014), the PLRA uses the term to
refer to juveniles. The statute’s definitions section makes clear that the PLRA is
concerned with juveniles who are adjudicated delinquent and not individuals who, for
example, are behind on their taxes. That section defines “institution” to include a facility
“in which reside juveniles who are adjudicated delinquent.” 42 U.S.C. §
1997(1)(B)(iv)(III).
Other statutes use similar language to bring juveniles within reach. For example,
the Sex Offender Registration and Notification Act (“SORNA”), defines the term
“convicted” to include cases in which an individual is “adjudicated delinquent as a
juvenile for that offense.” 42 U.S.C. § 16911(8). Additionally, SORNA, unlike the PLRA,
13

does make distinctions based on an individual’s status as a minor. Section 16915 of
SORNA allows for a reduction in the registration period for a tier III offender (the highest
offender level) who was “adjudicated delinquent for the offense which required
registration” if he maintains a clean record for twenty-five years. 42 U.S.C. §
16915(3)(B). The statute has no such provision for tier III offenders convicted as adults.
Thus, Congress is capable of making distinctions between adult and youthful offenders
when it wishes to. Congress chose to do so in SORNA and has not done so in the
PLRA. The court will decline the opportunity to read into the PLRA an exception that is
wholly unsupported by the text.
Nor does the court believe this result to be manifestly unreasonable or such an
absurd result as to justify a judicially implied exception. See United Metal Products
Corp., 811 F.2d at 300. The PLRA was passed “in the wake of a sharp rise in prisoner
litigation in federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The statute’s
purpose is to both decrease the quantity and increase the quality of prisoner suits.
Porter v. Nussel, 534 U.S. 516, 528 (2002). The centerpiece of the legislation is the
exhaustion requirement, which applies in any suit challenging prison conditions, not just
suits under § 1983. Woodford, 548 U.S. at 84. Given the wide reach of the PLRA, and
Congress’ desire to stem the flood of prisoner litigation, it is not surprising that Congress
would choose to address all prisoner litigation, including litigation brought by juvenile
inmates. Accordingly, this court will not second guess the reasonable policy decisions
Congress made in passing the PLRA.
While the question at hand is resolved by the text of the PLRA, the court will also
address Plaintiff’s contention that J.P. v. Taft, 439 F. Supp. 2d 793 (S.D. Ohio 2006),
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supports finding an exception in this case. J.P. relied heavily on the Sixth Circuit’s
decision in Thomas v. Woolum, 337 F.3d 720, 726-27 (6th Cir. 2003), which established
that a plaintiff’s procedural error in filing his grievance is not fatal to his claims so long
as the grievance provides “fair notice” to the defendant. 439 F. Supp. at 821.
Accordingly, the district court in J.P. analyzed whether the procedurally faulty grievance
at issue provided “fair notice” to the prison system. Id. at 825 (“Under Thomas, then, the
pivotal inquiry in assessing the adequacy of prisoner’s PLRA claim is whether prison
officials had ‘fair notice’ of that claim.”). Finding that the grievance did provide fair
notice, the court allowed the claims to proceed. Id. at 826.
Thomas, however, was explicitly abrogated by the Supreme Court in Woodford v.
Ngo, 548 U.S. 81, 87 (2006). See also Ellis v. Vadlamudi, 568 F. Supp. 2d 778 (E.D.
Mich. 2008) (noting Thomas’ abrogation). Woodford rejected the Sixth and Ninth
Circuits’ more relaxed “fair notice” approach to exhaustion. 548 U.S. at 87. Instead, the
Supreme Court required “proper exhaustion,” that is, exhaustion in compliance with all
administrative rules and procedures. Id. at 90-91,93. Even assuming, arguendo, that
juvenile status was important to the “fair notice” analysis before Woodford, that
consideration has no bearing on this court’s exhaustion analysis after Woodford. The
court, therefore, is not persuaded to deviate from the clear text of the PLRA, which
addresses juvenile and adult prisoners equally.
2. Whether Defendants Provided A Path For Exhausting Policy Complaints
Generally, to hold a prisoner to the exhaustion requirement, a prison must offer
some route to a grievance tribunal that has authority to take some responsive action.
Churner v. Booth, 532 U.S. 731, 736 n. 4 (2001). This is because the inmate has
15

nothing to exhaust if administrative authorities cannot act on the subject of the
complaint. Id. Thus, the Sixth Circuit has held that “[s]o long as the prison system has
an administrative process that will review a prisoner’s complaint . . . the prisoner must
exhaust his prison remedies.” Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006)
(quoting Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir. 1999)). On the other hand,
where a prison “has a flat rule declining jurisdiction,” exhaustion is not required. Id.
At issue is whether MDOC has such a rule declining jurisdiction that applies to
Plaintiffs’ claims. Plaintiffs make two arguments in the affirmative. First, they argue that
joint or class grievances are not permitted under PD03.02.130, citing Figel v. Bochard,
89 Fed. App’x 970, 971 (6th Cir. 2004). Pls.’ Opp. at 17. Figel concerned conduct that
occured in the early 2000s, when an earlier version of MDOC PD 03.02.130 was in
effect. That version of the Policy made non-grievable “[i]ssues which affect the entire
prisoner population or significant numbers of prisoners.” MDOC PD 03.02.130 ¶ F.4.
(eff. 11/01/00). Accordingly, in that case, the prison rejected a grievance concerning
heating and ventilation because it was a “group issue.” Figel, 89 F. App’x at 971.
Plaintiffs argue that their claims are also group or class issues and so cannot be
grieved. Pls.’ Opp. at 17.
The “group issue” ban, however, was removed from the next iteration of PD
03.01.130 (eff. 04/28/03) and is not in the version currently effective as of March 5,
2007. Today, issues affecting a large number of prisoners may be grieved by any

16

affected individual.1 Thus Figel is inapposite, and the court will reject this rationale for
excusing exhaustion.
Second, Plaintiffs argue that their claims fall within the rule provided in PD
03.02.130 ¶ F.1, such that this court should excuse Plaintiffs’ failure to exhaust. That
subsection states that “[a] grievant may not grieve the content of policy or procedure
except as it was specifically applied to the grievant.” Id. (emphasis in original).
Plaintiffs argue their claims fall within the rule because it is the official housing
policy and the official policy of “subjecting youth to solitary confinement, tasers and
other treatment inconsistent with their youthful status” that they challenge. Id.
Defendants, in turn, argue that Plaintiffs’ claims either arise out of specific applications
of policy to prisoners or are not related to the policy at all, so that they are all grievable.
Defs.’ Reply at 8. Specifically, Youthful prisoners’ placement among adults and the
failure to separate youths and adults by sight and sound are both policies that were
“specifically applied” to the John Does, and thus can be grieved. Id. at 8-9. The other
claims concerning the use of segregation, cross gender searches and other
inappropriate staff conduct, failure to protect, and inadequate supervision are all claims,
Defendants argue, involving violations of policy, not policy content, and are thus
grievable. Id.

1

The current version of PD 03.02.130 (eff. 07/09/07) states that “[t]wo or more
prisoners and/or parolees may not jointly file a single grievance regarding an issue of
mutual impact or submit identical individual grievances regarding a given issue as an
organized protest.” This is not a rule declining jurisdiction over all issues affecting a
class of prisoners, instead, it is a procedural rule prohibiting class grievances.
17

In two cases, as Plaintiffs point out, judges of this district have considered the
same or similar MDOC bans on policy-based grievances and refused to dismiss or grant
summary judgment for failure to exhaust administrative remedies.
In Mitchell v. Caruso prisoners complained that a prison’s policy of prohibiting
possession of certain legal materials concerning the Uniform Commercial Code violated
their First Amendment rights. No. 06-11567, 2006 WL 3825077 (E.D. Mich. Dec. 26,
2006). One plaintiff’s Step I grievance complained that the policy was overbroad and
vague and violated his First Amendment rights. The plaintiff received the following
response: “grievance is rejected in accordance with PD 03.02.130. You cannot grieve
the content of policy and procedure.” Id. at *2. The court in Mitchell wrote that “Plaintiffs
clearly challenge the content of [the policy]” and excused exhaustion. Id.
In Murphy v. Martin a prisoner brought a claim based on his exclusion from
MDOC’s Technical Rules Violation (“TRV”) program. 343 F. Supp. 2d 603 (E.D. Mich.
2004). That program might have allowed for his release from prison, but the prisoner
was excluded from the program based on mental disabilities for which he was
medicated. The PD at issue excluded any prisoner who has “a physical or mental
condition not consistent with the rigorous demands of the Program offered at the TRV
center, as determined from the Offender Health Questionnaire (CFJ-129).” Id. at 608.
The prisoner argued that the prison policy excluded, per se, all those with mental
disabilities from the TRV program in violation of the Equal Protection Clause and
various federal laws protecting the disabled. The Murphy court stated that “Plaintiff
clearly takes issue with the content of a MDOC Policy Directive which on its face
excludes [prisoners with mental conditions]” and excused exhaustion. Id.
18

As a preliminary matter, Mitchell fails to support Plaintiffs’ argument because that
case presents a factual scenario substantially different than the instant case. In Mitchell,
the prisoner presented a grievance that clearly attacked the face of the policy as
overbroad and vague, and MDOC explicitly rejected it based on the policy-grievance
ban. Plaintiffs in this case offer no evidence that MDOC rejected their grievances (or
would have rejected their grievances, had they been filed) on that ground.
Additionally, this court is not bound by the decisions of another district court, see
Michigan Elec. Employees Pension Fund v. Encompass Elec. & Data, Inc., 556 F. Supp.
2d 746, 761-62 (E.D. Mich. 2008), and, for the following reasons, the opinions are not
instructive in any event. Both Murphy and Mitchell were dismissed on other grounds and
simply did not fully address the question posed by the operative language, “except as
[the policy] was specifically applied to the grievant,” that is at issue here. Murphy, 343 F.
Supp. 2d at 605 (excusing exhaustion, but ordering dismissal because “Plaintiff’s claims
necessarily imply the invalidity of his conviction and should be dismissed”); Mitchell,
2006 WL 3825077 **4, 5 (excusing exhaustion, but ordering dismissal based on
mootness and qualified immunity). Those courts did not consider whether the specific
application of the policies to plaintiffs made their complaints grievable, and instead, in
dicta, excused exhaustion and moved onto other dispositive issues. Courts give little
weight to dictum when more complete analysis indicates the dictum is incorrect. See
Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351,1368 (2013).
Indeed, when considering the “specifically applied” exception, other courts in this
district have reached the opposite conclusion regarding the interpretation of MDOC’s
ban on policy-based grievances. See Hudson v. Caruso, 2011 WL 1042296 at *7 (E.D.
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Mich. Jan. 24, 2011); Melton v. Vasbinder, 2009 WL 928861 *3 (E.D. Mich. March 30,
2009). Those courts read the language of PD 03.02.130 F.1. to create a requirement
that prisoners grieve only policies that they believe have negatively impacted them.
Instead of being allowed to grieve policies they merely disagree with, those courts held
that prisoners may only grieve policies that were applied to them and that they allege
injured them in some way.
The Hudson and Melton cases have the better of the argument. Interpreting the
MDOC policy as a sweeping exception to the grievance process would allow prisoners
to simply skip the PLRA’s exhaustion requirement for any complaint arising from the
enforcement of any MDOC policy. A prisoner could do so through clever pleading,
casting his complaint as one attacking the policy facially.
It is more sensible to understand the PD as requiring something akin to standing.
Like Article III’s standing requirement, the MDOC policy is sensible because it preserves
scarce prison resources by preventing a flood of grievances brought by prisoners who
have only an ideological gripe with the policy. Cf. United States v. Richardson, 418 U.S.
166, 192 (1974) (Powell, J., concurring) (explaining that the standing requirement
prevents the Supreme Court from becoming “an open forum for the resolution of political
or ideological disputes”). It also improves the quality of decisions from the grievance
panel by ensuring that there is a specific controversy and set of facts before the panel
on which to make a decision.
Plaintiffs’ claims arise from the specific application of prison policies to each John
Doe, and, as such, are grievable claims. Thus, the court will not excuse the exhaustion
requirement based on PD 03.02.130's ban on policy-based grievances.
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3. Developmental and Learning Disabilities
Plaintiffs argue that there is a dispute of material fact as to whether the grievance
process was available to John Does 3, 4, 5, and 6 because of their “learning disabilities
and limited education.” Pls. Opp. at 24. The Sixth Circuit has held that “[t]he plain
meaning of the term ‘available’ is that a prisoner is required to exhaust only those
procedures that he is reasonably capable of exhausting.” Braswell v. Corrections Corp.
of America, 41 F. App’x 622 (6th Cir. 2011). Thus, one person’s physical or mental
incapacities could render administrative remedies unavailable. Id. at 625-26 (citing Days
v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (prisoner’s broken arm that prevented
him from filling out the grievance form could be grounds for excuse); Johnson-Ester v.
Elyea, No. 07-4190, 2009 WL 632250, at *6 (N.D. Ill. Mar. 9, 2009) (disabling mental
illness may render administrative remedies unavailable)).
Plaintiffs argue, “[i]n this case, several Plaintiffs has severe learning disabilities
and limited education including Does 3, 4, 5, and 6 . . . . Thus, their inability to formally
invoke and follow the procedural steps required for a grievance should be excused.”
Pls. Opp. at 24. When considering a motion for summary judgment, “[t]he court need
consider only the cited material, but it may consider other materials in the record.” Fed.
R. Civ. P. 56(c)(3). Plaintiffs have failed to cite to any evidence in the record in support
of their argument. Defendants, on the other hand, have provided exhibits to the court
showing that John Does 3, 5, and 6 have all successfully submitted grievances with
respect to unrelated matters. (John Doe 3: Dkt. # 133-22, Pg. ID 2959-88; John Doe 5:
Dkt. # 133-24, Pg. ID 2992-3039; John Doe 6: Dkt # 133-25, Pg. ID 3042-45). As to
John Doe 4, while there is no evidence that he has submitted other grievances, the
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court finds no record evidence that he is illiterate or has any mental incapacity that
would render the grievance system unavailable to him. The court has, despite Plaintiffs
failure to cite record evidence, reviewed the material available and found that there is no
dispute of fact as to this matter.
Additionally, when a prisoner alleges that illiteracy or mental impairment has
hindered his ability to file a grievance, other courts have required that the prisoner seek
help and that the prison reject that request before excusing exhaustion. Peterson v.
Hall, No. 11-15154, 2012 WL 3111632 at *8 (E.D. Mich. July 2, 2012) (citing Ramos v.
Smith, 187 F. App’x 152, 154 (3d Cir. 2006) (“With respect to his illiteracy, the District
Court correctly noted that the warden is required to give an illiterate inmate the
assistance required to prepare and file an appeal. 28 C.F.R. § 542.16(b). Ramos does
not claim that he asked for and was refused assistance in filing his administrative
appeal. We agree with the District Court that this will not excuse his failure to exhaust.”)
Indeed, MDOC PD 03.02.130 provides for situations in which prisoners have difficulty
filing grievances. “Wardens and FOA Area Managers shall ensure prisoners and
parolees are provided assistance in completing a grievance form, if needed. In such
cases, assistance shall be provided by a staff member who is not involved in the
grievance.” Id. at ¶ M. Plaintiffs have cited no evidence, and the court finds no evidence
in the record, that suggests that any John Doe ever requested help in filing a grievance
or that such a request was rejected. The court will therefore find that there is no dispute
of material fact as to this issue.
4. Unavailability of Remedies

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A prisoner’s failure to exhaust may be excused if administrative remedies are not
reasonably available, but the Sixth Circuit requires a prisoner to make “affirmative
efforts to comply with the administrative procedures before analyzing whether the facility
rendered these remedies unavailable.” Napier v. Laurel County, 636 F.3d 218, 223
(CA6 2011) (internal quotations and citations omitted). The Sixth Circuit has
“consistently analyzed whether an inmate’s efforts to exhaust were sufficient under the
circumstances, but in each case the prisoner did something.” Id. at 224. Additionally, a
prisoner’s subjective belief that the procedure is ineffective or futile is not enough to
excuse exhaustion. Pack v. Martin, 174 F. App’x 256, 262 (6th Cir. 2006).
Plaintiffs argue that every John Doe “‘did something’ to bring issues of sexual
misconduct to Defendant’s attention.” Pls.’ Opp. at 22. This contention misses the mark,
however. Exhaustion is not a protean concept, as Plaintiffs perceive it to be; it is a well
defined and specific process. The question is not whether the Does did anything at all,
it’s whether they did something to try to comply with the grievance procedure. In cases
where the Sixth Circuit has analyzed whether a prisoner’s exhaustion efforts, though not
complete, were sufficient, the prisoner has at least tried to file a grievance. See e.g.,
Bruce v. Corr. Med. Serv., Inc., 389 F. App’x 462, 467 (6th Cir. 2010) (noting that the
prisoner tried to file a grievance but “was told Policy 501.01 wouldn’t allow it”); Rancher
v. Franklin Cty., 122 F. App’x 240, 242 (6th Cir. 2005) (prisoner filed a grievance with
the jail, contacted prison personnel, an submitted documents from other prisoners
stating that the jail refused to accept medical grievances). No Plaintiff, except Doe 3,
submitted even a Step I grievance, and thus they cannot claim that exhaustion would

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have been futile.2 As the Sixth Circuit stated, ‘the only way to determine if the process
was available, or futile, was to try.” Napier, 636 F.3d at 224.
Plaintiffs also allege that prisoner complaints of sexual harassment were “not
processed as grievances and therefore the prisoner [could not] exhaust that process.”
Def.’s Opp. at 14. Instead, they claim, prisoners were informed that the issues “will be
handled administratively” and that the investigations were conducted and closed by
PREA investigators. Id. As such, “Defendants did not utilize the grievance process to
resolve the sexual misconduct grievances and the response of the MDOC did not allow
for any appeal to step 2 or 3 of the grievance process.” Id.
Given MDOC’s grievance procedure, Plaintiffs cannot be correct that responses
of this nature would “not allow for any appeal to step 2 or step 3.” MDOC PD 03.02.130
provides that a prisoner may file a Step II grievance if he “is dissatisfied with the
response received at Step I or if [he] did not receive a timely response.” ¶ BB. The
same goes for Step III. ¶ FF. If a prisoner is dissatisfied because his grievance has

2

Additionally, the court notes that this finding—that Plaintiffs’ failure to attempt to
comply with the grievance process precludes their argument that exhaustion was
futile—also resolves their contention that summary judgment would be premature.
Federal Rule of Civil Procedure Rule 56(d), formerly Rule 56(f), allows a nonmoving
party to submit an affidavit stating that he is unable to present facts essential to his
opposition and should be afforded more discovery. “It is up to the party opposing the
motion to state why more discovery is needed.” Wallin v. Norman, 317 F.3d 558, 564
(6th Cir. 2003). At this point, the only evidence that would be essential, or even material,
to Plaintiffs’ opposition is evidence that the John Does tried to comply with the
grievance process. Plaintiffs, in their affidavit, Pls.’ Mot. at Ex. 10, and in their motion
make no representation that they seek or hope to discover such material. They merely
request additional discovery on the alleged assaults and various John Does’ attempts to
raise their concerns outside of the grievance process. New evidence of this type is not
essential to their opposition to a motion for summary judgment for failure to exhaust,
and summary judgment is not premature.
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been investigated and resolved by PREA investigators or “handled administratively,” a
prisoner would always have the option of filing a grievance at the next level. By doing so
he would exhaust the prison’s administrative process and gain access to the federal
courts.
Moreover, it is undisputed that John Does 1, 2, 4, 5, 6, and 7 never tried to file a
grievance concerning the issues in this case. Thus, these plaintiffs cannot argue that
their grievances were processed incorrectly. Given that this and all of Plaintiffs’ above
arguments concerning exhaustion have failed, and there are no remaining disputes as
to any material facts concerning John Does 1, 2, 4, 5, 6 and 7, summary judgment is
proper as to these Plaintiffs.
John Doe 3 did file one Step I grievance but received no response from the
prison. Plaintiffs argue that a prison’s untimely response or failure to respond to a
grievance excuses exhaustion, citing Boyd v. Corr. Corp. of America, 380 F.3d 989 (6th
Cir. 2004). Pls.’ Opp. at 23. Boyd does not support Plaintiffs proposition, however,
because there are important factual distinctions between that case and the instant case.
Critical to the Sixth Circuit’s decision in Boyd was the fact that Boyd “was required to
wait for a grievance officer to make a decision regarding his formal grievance before he
could appeal to the warden.” 380 F.3d at 996. Thus, by not responding, the prison
rendered the rest of the grievance process unavailable to the prisoner. That is not so
here. MDOC allows appeal to the next grievance step even when the prisoner has
received no response or an untimely response. Thus, Doe 3 was free to appeal to the
next step once the prison’s response time expired. The administrative remedy was still
available to him.
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Plaintiffs however raise one factual issue that Defendants have made no effort to
refute with regards to Doe 3. Doe 3 stated in deposition that “there’s some grievances
that I wrote that I know that they ripped up because they ripped them up in front of my
face.” (Dkt. # 133-8, Pg. ID 2831). Thus, Plaintiffs argue that prison officials thwarted
Doe 3's efforts to grieve and that this factual issue precludes summary judgment.
The Sixth Circuit’s decision in Surles v. Andison, 678 F.3d 452, 457 (6th Cir.
2012) is instructive. In Surles, a prisoner alleged that when he “attempted to file a
grievance . . . [a prison official] refuse [sic] to file or process these grievances.”
Reversing the district court’s grant of summary judgment, the Sixth Circuit held that
MDOC did not adequately show that its employees did not interfere with the prisoner’s
ability to use the grievance process. Id. at 457-58. The circuit noted, “if the plaintiff
contends that he was prevented from exhausting his remedies [the defendant] must . . .
present evidence showing that the plaintiff’s ability to exhaust was not hindered.” Id. at
457 n. 10. Here too, Plaintiffs have presented some evidence in the form of testimony
that Doe 3, who did file one grievance, may have been thwarted in his efforts to file
others. This creates a triable issue of fact as to Doe 3, making a grant of summary
judgment as to him inappropriate.
The Sixth Circuit has also, however, recently held that “disputed issues of fact
regarding exhaustion under the PLRA . . . could be decided in a bench trial.” Lee v.
Willey, 789 F.3d 673, 678 (6th Cir. 2015). Willey condoned a district court judge’s
decision to hear and weigh evidence on the matter of exhaustion before allowing the
merits of a case to be tried before a jury. That procedure is appropriate here.
Exhaustion is a threshold issue of judicial administration that this court “must address to
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determine whether litigation is being conducted in the right forum at the right time.”
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). Accordingly, the court will conduct a
bench trial to resolve this final factual issue with respect to Doe 3 and his claim that his
ability to exhaust was hindered.
IV. CONCLUSION
IT IS ORDERED that Defendants’ Motion for Summary Judgment [Dkt. # 133] is
GRANTED in part and DENIED in part. Summary judgment is GRANTED as to the
claims of John Does 1, 2, 4, 5, 6, and 7 and DENIED as to the claims of John Doe 3.
IT IS FURTHER ORDERED that the parties shall APPEAR by telephone for a
status conference concerning the bench trial on exhaustion issues on February 18,
2016 at 11:00am. (The Court will initiate the call)

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 8, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, February 8, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356. DOE.msj.smq.V3.wpd

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