DOE v. Snyder et al

Filing 33

OPINION AND ORDER granting 19 Defendants' Motion for Summary Judgment. Signed by District Judge Robert H. Cleland. (LWag)

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

JOHN DOE 8, JOHN DOE 9, and
JOHN DOE 10,
Plaintiffs,
v.

Case No. 17-11181

RICHARD SNYDER, et al.,
Defendants.
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OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Plaintiffs are former juvenile prisoners who were imprisoned with adults in
Michigan Department of Corrections (“MDOC”) facilities. They originally appeared as
Plaintiffs in a related case before this court, No. 13-14356. But following a motion for
summary judgment in that case, Plaintiffs were dismissed without prejudice for failing to
exhaust their administrative remedies as required by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e. (See No. 13-14356, Dkt. #204.) This case represents
Plaintiffs’ second try, as they have attempted to cure the deficiencies noted in the
court’s prior order. Defendants have again moved for summary judgment on the same
ground: failure to exhaust administrative remedies. (Dkt. #19.) Plaintiffs filed a response
(Dkt. #27) and Defendants a reply (Dkt. #30). The court has determined that a hearing
is unnecessary. E.D. Mich. LR 7.1(f)(2). For the following reasons, Defendants’ motion
is granted.

I. BACKGROUND
Before they turned 18, Plaintiffs were imprisoned with adults in MDOC facilities.
They ate, washed, worked, spent free time, and bunked with adult prisoners, a practice
MDOC no longer employs.
Plaintiffs allege that during the time they were housed with adult prisoners, they
were subject to an increased—and unconstitutional—risk of sexual harassment and
assault. As a result of the former housing policy, Plaintiffs allege they have suffered
sexual violence and abuse, physical injuries, and trauma.
Plaintiffs originally came before this court as Plaintiffs in another class action
setting forth nearly identical claims. Defendants there moved for summary judgment as
to these Plaintiffs, arguing that they had not exhausted their administrative remedies
and had no legal excuse for the failure. The court agreed. Plaintiffs were dismissed
without prejudice for failure to exhaust. The court determined that MDOC’s formal
grievance process—Policy Directive (“PD”) 03.02.130—was the “only method of
exhaustion that MDOC has made available to Plaintiffs” (Dkt. #204 Pg. ID 5221) and
Plaintiffs had not utilized it.
PD 03.02.130 requires that inmates participate in a multi-step grievance process
to exhaust claims for the purposes of the PLRA. First, within two days of discovering a
problem, inmates must attempt to informally resolve their issue with the staff member
involved. If an informal resolution cannot be reached, the inmate must file a Step I
grievance within five days of the attempt. If an inmate is dissatisfied with the response
at Step I or does not receive a timely response, he must file a Step II grievance within
ten days. The same goes for a Step II grievance—if a prisoner is unsatisfied or fails to

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receive a timely response at Step II, he must file a Step III grievance within ten days.
Inmate complaints “serve to exhaust a prisoner’s remedies only when filed as a
grievance through all three steps of the grievance process.” (PD 03.02.130, Dkt. #19-2
Pg. ID 118.)
Plaintiffs indisputably did not utilize this procedure. (No. 13-14356, Dkt. #204 Pg.
ID 5221–27.) Having no legally sufficient excuse for their failure to exhaust, Plaintiffs
were dismissed in March 2017.
Running parallel to Plaintiffs’ case was the implementation of new standards
under “PREA,” the Prison Rape Elimination Act, 34 U.S.C. §§30301–09. In 2012, the
Department of Justice adopted various standards “for the detection, prevention,
reduction, and punishment of prison rape” as required by PREA, 34 U.S.C.
§ 30307(a)(1). One such regulation, 28 C.F.R. § 115.51(b)(1), provides that prisons
“shall not impose a time limit on when an inmate may submit a grievance regarding an
allegation of sexual abuse.” States receiving federal funding for prisons were required to
certify, within two years of the adoption of the rule, that the State was in compliance with
the national standard or that it was using federal funds to achieve compliance.
§ 30307(e)(2)(A), (e)(7)(A). In 2014, the State of Michigan certified that it was using
federal funds to achieve compliance. (Dkt. #19-3.)
In April 2016, MDOC issued Director’s Office Memorandum (“DOM”) 2016-29
establishing a two-step “PREA grievance process.”1 Under this process, an inmate “may
file a PREA grievance at any time by submitting a completed PREA Prisoner Grievance

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Available at http://www.michigan.gov/documents/corrections/DOM_201629_PREA_Grievance_Process_523169_7.pdf.

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Form.” Inmates are not required to take any informal steps before filing a PREA
grievance. After filing at Step I, the PREA coordinator or inspector must provide a
written response within 60 days unless an extension is granted. An inmate may file a
Step II appeal if he is unsatisfied or does not receive a timely response at Step I. “Any
grievance containing issues other than sexual abuse shall be returned to the prisoner
with instructions to process the prisoner’s non-PREA issues in accordance with PD
03.02.130 ‘Prisoner/Parolee Grievances.’” The PREA grievance process serves to
exhaust an inmate’s administrative remedies when filed through both steps of the
process. The process was implemented “effective immediately.”
John Doe 8 and 10 have now made “new” attempts to exhaust their
administrative remedies.2 John Doe 8 filed a grievance form on May 20, 2016. (Dkt.
#27-9 Pg. ID 374.) John Doe 10 filed a grievance form on May 25, 2016. (Dkt. #27-10
Pg. ID 377.) Each received a response to his grievance informing him that his complaint
was being referred to a “PREA investigator.” (Dkt. #27-11 Pg. ID 380; Dkt. #27-12 Pg.
ID 382.) The response also noted that “[a]ny non-PREA issues reported on the same
Step I form as the reported PREA issue must be resubmitted individually pursuant to PD
03.02.130 ‘Prisoner/Parolee Grievances.’” (Id.)
John Doe 8 received a response to the PREA grievance on June 13, 2016. The
response stated that the grievance had been “forwarded . . . for investigation,” but that

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In actuality, John Doe 8 and John Doe 10 filed the described grievances before
they were dismissed from the initial case. The PLRA, however, “makes exhaustion a
precondition to filing an action in federal court.” Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999). “The prisoner, therefore, may not exhaust administrative remedies
during the pendency of the federal suit.” Id. Thus it would have been futile for Plaintiffs
to bring this evidence to the court in the initial case.

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“[a]lthough the investigation is pending, this PREA Grievance is considered responded
to and closed.” (Dkt. #27-3 Pg. ID 338.) Again, the response also noted that John Doe 8
“must submit a new grievance in accordance with P.D. 03.02.130 ‘Prisoner/Parolee
Grievances’ for any issue not related to sexual abuse/harassment.” (Id.) John Doe 8,
concerned with this answer, requested Step II grievance forms but could not obtain one.
He therefore wrote out his own Step II grievance and submitted it to the PREA
coordinator on June 27, 2016. (Dkt. #27-18 Pg. ID 405.) He did not receive a response.
John Doe 10 did not receive an answer to his Step I PREA grievance. Similarly
lacking the Step II appeal form, John Doe 10 wrote out a Step II appeal on a Step I
grievance form on August 1, 2016. (Dkt. #27-23 Pg. ID 427.) The appeal was returned
with a post-it note advising John Doe 10 to file the document by sending it to another
facility. He did, but did not receive a response. In September 2016, having heard
nothing, John Doe 10 sent all of his grievances and materials to the PREA administrator
and director in Lansing. He did not receive a response. John Doe 10 ultimately filed a
separate grievance in September over the fact that he had not heard anything about his
initial grievance. (Dkt. #27-26 Pg. ID 433.)
Plaintiff John Doe 9 alleges that, though he intended to file a PREA grievance to
exhaust his administrative remedies following his dismissal, his intentions were thwarted
by prison officials who threatened retaliatory action. (Dkt. #27-28.)
II. STANDARD
Summary judgment is proper “if the movant shows that 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

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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 nonmovant, 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). It is the parties’ responsibility to support their factual assertions by
citation to the record; the court is under no obligation to search for materials in the
record uncited by the parties. Fed. R. Civ. P. 56(c).
III. DISCUSSION
Defendants allege that Plaintiffs have still not properly exhausted their
administrative remedies. Pursuant to this court’s earlier rulings, Plaintiffs were required
to exhaust under PD 03.02.130, which they have not done. Defendants also argue that
Plaintiffs’ attempts to use the PREA grievance process is insufficient for at least three
reasons: Plaintiffs’ claims are, at their core, about housing rather than sexual abuse or
harassment, and therefore not grievable under PREA; Plaintiffs did not complete the
required PREA grievance process as set forth under MDOC guidelines; and PREA
cannot retroactively revive Plaintiffs’ claims because the PREA grievance process was
implemented after Plaintiffs experienced sexual abuse.
Plaintiffs respond that they filed their grievances under MDOC’s general
grievance procedure but were diverted through the PREA process, so Defendants’
argument that they should have used the general procedure is disingenuous. Plaintiffs

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also argue that they were effectively shut out of the formal PREA appeal process
because of Defendants’ conduct in failing to provide appeal forms, failing to respond to
submitted grievances, and giving misleading or confusing information. Finally, Plaintiffs
say that Defendants forfeited a position on the retroactivity of the PREA grievance
procedures by processing Plaintiffs’ grievances on the merits.
A. The Administrative Exhaustion Requirement
Under the PLRA, inmates may not bring federal actions challenging their prison
conditions without first exhausting “such administrative remedies as are available.” 42
U.S.C. § 1997e(a). Failure to exhaust is an affirmative defense that must be raised and
proved by a defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). The prison’s
requirements—not the PLRA—define the boundaries of proper exhaustion. Id. at 218.
Thus “[p]roper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Defendants argue that Plaintiffs have still failed to exhaust their administrative
remedies as required under PD 03.02.130. They point to earlier rulings of this court in
the initial case. There, the court determined that the only procedure that could properly
exhaust Plaintiffs’ claims was the formal grievance process of PD 03.02.130. (No. 1314356, Dkt. #156 Pg. ID 3596; Dkt. #204 Pg. ID 5221.)
Plaintiffs argue that Defendants’ diversion of their claims through the PREA
process precludes Defendants from arguing that PD 03.02.130 was the only proper
method of exhaustion. Plaintiffs’ argument fails for two reasons.
First, this “diversion” did not preclude Plaintiffs from exhausting through the
formal grievance procedure. Plaintiffs received multiple notices informing them that they

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were required to re-file any non-PREA related grievances through the formal grievance
process. (See, e.g., Dkt. #27-3 Pg. ID 338 (“Only allegations of sexual
abuse/harassment are being addressed in this PREA Grievance. You must submit a
new grievance in accordance with P.D. 03.02.130 ‘Prisoner/Parolee Grievances’ for any
issue not related to sexual abuse/harassment.”).) Moreover, as the court noted in the
initial case, the Defendants’ handling of a grievance outside the formal grievance
procedures did not preclude Plaintiffs from pursuing their administrative remedies
through Step III. As the court said before: “If a prisoner is dissatisfied because his
grievance has 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.” (No. 13-14356, Dkt. #156 Pg. ID 3612–13.) Plaintiffs
indisputably did not file Step II grievances under PD 03.02.130 after being informed that
their grievances were being sent through PREA.
Despite these response notices and the court’s prior discussion of the formal
grievance procedure, Plaintiffs argue that their claims are properly treated as claims for
sexual abuse/harassment that can be addressed under the PREA grievance
procedures. According to Plaintiffs, to support Defendants’ argument that their claims
should have been addressed through the formal grievance procedure, “Defendants
proffer a strained reframing of Plaintiffs’ claims of custodial sexual abuse and
harassment against Defendants and sexual abuse by other prisoners.” (Dkt. #27 Pg. ID
311.) “There is no support for this argument,” according to Plaintiffs, because their
“complaint is that they were sexually assaulted and harassed while in Defendants’

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custody because Defendants failed to protect them despite knowledge of their
vulnerability to such abuse.” (Id. at Pg. ID 312.) To the extent that Plaintiffs argue that
the entirety of their claims were properly submitted and exhausted through PREA, that
argument fails for reasons fully discussed below.
Second, even if Plaintiffs’ grievances had been treated as Step I grievances
under the formal procedure, they indisputably would have been untimely. The formal
grievance procedure of PD 03.02.130 requires attempts at informal resolution within two
days and the filing of a Step I grievance within five days of the alleged incident.
Plaintiffs’ grievances were submitted in May 2016 for events dating between 2011 and
2015. The court noted in the initial case while dismissing other plaintiffs for failure to
exhaust: “[M]ost of the Does are likely now time barred from exhausting their claims.”
(Dkt. 188 Pg. ID 4101.)
Even assuming that Plaintiffs’ grievances were properly treated as PREA
grievances, however, that would not serve to administratively exhaust their claims here.
B. Retroactivity of PREA Grievance Process
As noted above, the PREA grievance process was not adopted until April of
2016. John Doe 8 alleges sexual abuse, sexual harassment, assault, and rape
occurring between 2012 and 2013. (Dkt. #1 Pg. ID 16–17; Dkt. #27-9 Pg. ID 374–75.)
John Doe 9 alleges sexual abuse, sexual harassment, assault, and rape occurring
between 2011 and 2013. (Dkt. #1 Pg. ID 18–20.) John Doe 10 alleges sexual abuse,
sexual harassment, and assault occurring between 2011 and 2015. (Dkt. #1 Pg. ID 21–
23; Dkt. #27-10 Pg. ID 377). Plaintiffs’ claims could be properly exhausted through the
PREA grievance process, therefore, only if the regulation mandating the new procedure

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and eliminating the deadline to file sexual assault grievances—28 C.F.R.
§ 115.51(b)(1)—has retroactive effect.
Two apparently contradictory principles guide the court’s application of
intervening changes in the law: though generally “a court must apply the law in effect at
the time it renders its decision,” the court “should not construe congressional
enactments and administrative rules to have retroactive effect unless their language
requires this result.” BellSouth Telecomms., Inc. v. Se. Tel., Inc., 462 F.3d 650, 657 (6th
Cir. 2006) (internal quotation marks omitted) (quoting Landgraf v. USI Film Prods., 511
U.S. 244, 263–64 (1994)). The result is that “courts should apply the law in effect at the
time that they decide a case unless that law would have an impermissible retroactive
effect as that concept is defined by the Supreme Court.” Id. (emphasis original).
Because Congress may enact laws that apply retroactively, “the court’s first task
is to determine whether Congress has expressly prescribed the statute’s proper reach.”
Landgraf, 511 U.S. at 280. If the plain text of the statute shows that it is to have a
retroactive reach, the court’s inquiry is complete. Where, however, there is “no such
express command,” the court must determine whether the law would have an
impermissible retroactive effect. Id.
A law is impermissibly retroactive if “the new provision attaches new legal
consequences to events completed before its enactment.” Id. at 270. That is, the court
looks to whether the statute “would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new duties with respect to
transactions already completed.” Id. at 280. Courts making the assessment take “sound
guidance from familiar considerations of fair notice, reasonable reliance, and settled

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expectations.” BellSouth, 462 F.3d at 658 (internal quotations omitted). If the court
determines that the statute would operate retroactively, “our traditional presumption
teaches that it does not govern absent clear congressional intent favoring such a result.”
Landgraf, 511 U.S. at 280. Procedural rules, on the other hand—rules that regulate
secondary rather than primary conduct—may be applied in cases arising before their
enactment even in the absence of such congressional intent. Id. at 275.
The court finds that § 115.51(b)(1) and the resulting PREA grievance process
would have an impermissible retroactive effect if applied to this case. First, nothing in
the text of the regulation or the PREA grievance process indicates that the regulation
carries an “express command” of retroactive effect. Indeed, States were not required to
certify compliance with the rule until two years after the rule was promulgated. See 34
U.S.C. § 30307(e)(2)(A), (e)(7)(A). The delay between promulgation and effective date
is significant in demonstrating that the enactment did not reach conduct occurring
before it became effective. See Siding & Insulation Co. v. Alco Vending, Inc., 822 F.3d
886, 892 (6th Cir. 2016) (finding that a FCC regulation with an effective date 90 days
after promulgation was intended to give parties time to come into compliance);
Campbell v. Nationstar Mortg., 611 F. App’x 288, 297 (6th Cir. 2015) (finding that a
CFPB regulation with an effective date a year after promulgation was not intended to
apply retroactively).
There is also no doubt that retroactive application of § 115.51(b)(1) to
Defendants would “increase [their] liability for past conduct.” Landgraf, 511 U.S. at 280.
Permitting Plaintiffs to use the PREA Grievance process to exhaust claims that were
previously foreclosed would expose Defendants to a variety of new liabilities for conduct

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occurring before § 115.51(b)(1) was enacted. The court cannot properly impose such
new liabilities on Defendants in the absence of a clear congressional expression that
the rule should reach that far.
Moreover, the court’s conclusion is in line with “familiar considerations of fair
notice, reasonable reliance, and settled expectations.” BellSouth, 462 F.3d at 658
(internal quotations omitted). The deadlines in the formal grievance process having
passed, Defendants reasonably could have assumed that they were no longer subject
to suit for claims like those presented here. Nor is § 115.51(b)(1) the type of procedural
rule that does not raise concerns about retroactivity. The rule regulates primary
conduct—it instructs that prisons “shall not impose a time limit on when an inmate may
submit a grievance regarding an allegation of sexual abuse,” and it prohibits prisons
from requiring inmates to engage in informal grievance procedures.
Other courts considering the retroactive application of § 115.51(b)(1) have
reached the same conclusion. See, e.g., Kelsic v. Terrel, No. 14-3342, 2017 WL
2560923, at *4 (E.D.N.Y. June 13, 2017) (“The Court can find no support for the
proposition that the PREA regulations and implementing program statement should be
applied retroactively where the alleged sexual assault occurred, and the time to grieve
expired, before the PREA regulations went into effect.”); Payton v. Thompson, No.1392, 2015 WL 252277, at *4 (E.D. Ark. Jan. 20, 2015); Wakeley v. Giroux, No. 12-2610,
2014 WL 1515681, at *4 (M.D. Pa. Apr. 15, 2014).
Plaintiffs’ claims arose before the implementation of the new PREA grievance
process. Because § 115.51(b)(1) does not apply retroactively, Plaintiffs were not
permitted to use this process to exhaust claims arising before its enactment.

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Plaintiffs, for their part, do not argue that the regulation should apply
retroactively, but argue that Defendants’ forfeited the right to raise retroactivity by
processing Plaintiffs’ grievances on the merits. They cite Reed-Bey v. Pramstaller, 603
F.3d 322 (6th Cir. 2010), which held that a prison forfeits the right to challenge
procedural defects in a grievance by processing the grievance on the merits. In ReedBey, an inmate submitted a grievance that—contrary to prison regulations—did not
individually name those involved in the issue being grieved. Id. at 324. Because the
prison processed the grievance on the merits, however, the Sixth Circuit determined
that the prisoner had nonetheless properly exhausted. The court concluded: “When
prison officials decline to enforce their own procedural requirements and opt to consider
otherwise-defaulted claims on the merits, so as a general rule will we.” Id. at 325.
Though Plaintiffs’ continually characterize Defendants’ reliance on the
retroactivity argument as a “procedural bar,” Defendants’ argument is not a procedural
one. Defendants’ position is that Plaintiffs’ new, timely PREA grievances do not revive
claims previously dismissed for failure to exhaust PLRA requirements. This is not the
sort of “procedural irregularity” at issue in Reed-Bey. Indeed, it is the substantive nature
of the regulation that lends support to the conclusion that it should not be applied
retroactively. To hold otherwise would impermissibly put MDOC between a rock and a
hard place. The PREA grievance process does not impose a time limit on the
submission of grievances alleging sexual assault. If MDOC officials rejected a PREA
grievance as untimely because it included claims of sexual assault occurring before the
process was implemented, the officials would be violating the provision prohibiting time

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limits. But if processing a PREA grievance on the merits resulted in a revival of claims
previously foreclosed, the officials may decide nevertheless to reject the claim.
C. Whether Plaintiffs Have Administratively Exhausted
The parties spend much of their briefing debating whether John Doe 8 and John
Doe 10 successfully appealed through the PREA grievance process in a manner
sufficient to exhaust their claims. As noted above, however, whether John Doe 8 and
John Doe 10 made it through the PREA process is irrelevant in light of the fact that the
procedure may not properly be applied retroactively. Because these two Plaintiffs have
not alleged that they exhausted in some other manner, summary judgment is
appropriate as to them.
John Doe 9, on the other hand, asserts that he was thwarted from the PREA
grievance process by “the threats and retaliation [he] experienced at the Alger
Correctional Facility for reporting sexual abuse that is the subject of this litigation.” (Dkt.
#27 Pg. ID 327.) But even if John Doe 9 had successfully proceeded through the PREA
grievance process, as he says he intended to do, that would not have served to exhaust
his claims here. Thus summary judgment is also appropriate as to John Doe 9.
IV. CONCLUSION
Plaintiffs have not administratively exhausted their claims as required by the
PLRA. Thus, summary judgment is again appropriate. Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment (Dkt. #19) is
GRANTED. A separate judgment shall issue.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 23, 2018

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, February 23, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\KNP\Civil\13-14356.DOES.summary.judgment.exhaustion.KNP.docx

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