Cook #128535 v. Cashler et al

Filing 67

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT CHARLES COOK #128535,
Plaintiff,
File no: 1:11-CV-637
v.
HON. ROBERT HOLMES BELL
UNKNOWN CASHLER, et al.,
Defendants.
/

OPINION
On March 25, 2013, this Court approved and adopted Magistrate Judge Joseph G.
Scoville’s March 5 Report and Recommendation (“R&R”), denied Plaintiff’s various
pending motions, granted Defendant Jackson’s motion to dismiss, granted Defendants
Galiton, Gibson, Scrivens, Watson, Sutherby, McLellan, and Cashler’s motions for summary
judgment, dismissed Plaintiff’s claim for declaratory relief against Defendant Jackson as
moot, dismissed Plaintiff’s claims against Defendant Wakefield for failure to state a claim
upon which relief can be granted, dismissed Plaintiff’s claims against Defendants Galiton,
Gibson, Scrivens, Watson, Sutherby, McLellan, and Cashler for failure to properly exhaust
any claim against said Defendants, and entered judgment in favor of Defendants. (Dkt. Nos.
60-61.)
Presently before the Court are two motions for extensions of time (Dkt. Nos. 63-63),
and a motion for reconsideration (Dkt. No. 65), all filed by Plaintiff.

A. First Motion for Extension
Plaintiff’s first motion for an extension of time was filed on March 25, 2013, and
sought an extension of time within which to file objections to the March 5 R&R. (Dkt. No.
62.) This motion and the attached objections were not received by the Court until after it
issued the order approving and adopting the R&R and entered judgment in favor of
Defendants. (Dkt. Nos. 60-61.)
Plaintiff subsequently provided a receipt indicating that his first motion for an
extension and the attached objections were mailed on March 20, 2013, within the time
allotted to file objections to the R&R. (Dkt. No. 63, Ex. A.) Documents prepared by pro se
prisoners are considered “filed” at the time of delivery to prison authorities for forwarding
to the court clerk, rather than on the date of receipt by the clerk. Houston v. Lack, 487 U.S.
266, 276 (1988). Thus, in light of the date written on the legal mail forms, the Court will
accept Plaintiff’s objections as timely filed. Because the objections have been filed and will
be considered at this time, the first motion for extension will be denied as moot. However,
because these objections lack merit, the Court will affirm its March 25 order and judgment.
1. Law
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to

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enable the district court to discern those issues that are dispositive and contentious.” Miller
v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or
all of the Magistrate Judge’s findings or recommendations. Id.
2. Objections
i. Defendants Cashler and McClellan
Plaintiff’s first objection is that this Court, specifically with regard to Defendants
Cashler and McClellan, ignored the well-settled rule of law that prisoners cannot file
grievances on disciplinary matters. Plaintiff provides no source for this “well-settled rule of
law,” although it appears to stem from Michigan Department of Corrections (“MDOC”)
Policy Directive 03-02-130, which provides that decisions made in grievance hearings and
decisions made in minor misconduct hearings are non-grievable issues. (Dkt. No. 19, Ex. A,
¶ F.)
However, Plaintiff’s allegations against Cashler do not regard decisions made in any
hearings. Instead, throughout his many vague and oftentimes irrelevant allegations regarding
Cashler, Plaintiff alleges the following: Cashler wrote fabricated theft tickets in retaliation;
Cashler was part of a conspiracy to violate Plaintiff’s constitutional rights; Cashler “went on
a crime spree” by shaking cells down, reading legal papers, destroying prisoners’ property,
and yelling and screaming at Plaintiff; Cashler wrote Plaintiff a false major misconduct for
refusing to obey a direct order; and Cashler wrote Plaintiff a false minor ticket for
“Temporary out of Place.” (Dkt. No. 1, at PageID# 10-11, 13, 17-20, 26.) All of these

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allegations could have been grieved because the behavior occurred outside of the disciplinary
hearing context.
Nor do Plaintiff’s allegations against McClellan, a hearings investigator, directly
regard decisions made in any hearings. Plaintiff alleges that McClellan engaged in improper
conduct (including the obstruction of justice and refusal to investigate Plaintiff’s defenses)
during the investigation of misconduct tickets, was part of the conspiracy to violate
Plaintiff’s constitutional rights, violated due process and equal protection of the law by
illegally pulling a theft ticket from Plaintiff’s file before a major disciplinary hearing on the
ticket was held on June 1, 2008, refused to investigate or question witnesses before another
hearing, and refused to give Plaintiff access to his records and files. (Dkt. No. 1, at PageID#
11-13, 27, 30, 32.) As with Cashler, this alleged behavior all occurred prior to any
disciplinary hearing and could have been grieved.
Even if any of these claims against Cashler or McClellan (or any other defendant for
that matter) could be considered non-grievable as claims regarding issues directly related to
the hearing process, that does not mean that Plaintiff’s administrative remedies were
exhausted. While decisions made in misconduct hearings are non-grievable, the proper
avenue of appeal (as made clear to Plaintiff in regard to an improperly filed grievance against
Minnerick) is, for a major misconduct, to submit a Request for Rehearing form to the
Hearings Administrator in Lansing and, for a minor misconduct, to submit a Minor
Misconduct Appeal to the ADW of Housing. (See Dkt. No, 19, Ex. Q, Step II Grievance

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Resp., at PageID# 263.) Plaintiff has provided no evidence of ever submitting either form
with regard to his claims against Cashler and McClellan.1 Moreover, even if Plaintiff had
properly exhausted his administrative remedies against these two defendants, the Court finds
Plaintiff’s allegations against them to be frivolous and completely devoid of support. See 28
U.S.C. §§ 1915(e)(2) & 1915A; 42 U.S.C. § 1997e(c).
Relatedly, Plaintiff additionally alleges that Cashler, by presenting the “illegal”
defense that Plaintiff never filed grievances regarding disciplinary matters, has “pleaded
himself guilty.” There is no such rule of law, and Cashler has not pleaded guilty by filing the
defense of failure to exhaust administrative remedies.
ii. Defendant Gibson
Plaintiff objects to the fact that the Magistrate Judge “chose to ignore” the fact that
Plaintiff did file grievances against Defendant Gibson. Plaintiff has failed to provide any
evidence that he did indeed file grievances naming Gibson. Moreover, even if Plaintiff did
file such grievances, he concedes that they were rejected as untimely and/or in violation of
MDOC policy. (Dkt. No.62, Attach. 1, at PageID# 481.) “Proper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules.” Woodford v.
Ngo, 548 U.S. 81, 90 (2006).
iii. Defendant Jackson
1

In his second motion for an extension of time, Plaintiff does attach a Minor Misconduct
Appeal concerning his allegation that Defendant Minnerick falsified a misconduct ticket. (Dkt.
No. 63, Ex. C.) However, as discussed in detail infra, the Court finds the claim against
Minnerick, even if properly exhausted, to be frivolous.
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Next, Plaintiff argues that footnote four in the Court’s February 22, 2012, order (Dkt.
No. 7, at 13 n.4), which stated that Defendant Jackson was entitled to immunity, was
mistakenly entered. This footnote was not included in error. Instead, the footnote correctly
stated that Jackson was entitled to absolute judicial immunity from monetary damages for his
actions taken in his capacity as a hearings officer. See Shelly v. Johnson, 849 F.2d 228, 230
(6th Cir. 1988). As for Plaintiff’s claim against Jackson for non-monetary damages – the
claim seeking declaratory relief on his retaliation claim – the opinion stated that service on
Jackson for that claim was warranted. (Dkt. No. 7, at 13.) Thus, the R&R was not in error
when it explained that Plaintiff’s claims against Jackson, other than the claim for declaratory
relief, were dismissed on February 22. (Dkt. No. 59, at 2 n.1.)
Plaintiff next contends that Jackson’s “secondary” defense of mootness for the nonmonetary claim could only be accepted by the Court if Plaintiff was seeking injunctive relief
against Jackson. This argument is nonsensical. Plaintiff is no longer at the same facility as
Jackson, and the Sixth Circuit has repeatedly held that claims against prison officials for both
injunctive relief and declaratory relief are moot if the inmate is no longer at the facility
where the alleged wrongdoing occurred. Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010)
(“This leaves Colvin’s requests for declaratory and injunctive relief. But these forms of relief
are moot because Colvin’s requests were directed specifically at LMF’s policies and
procedures and were not targeted at the MDOC kosher-meal program as a whole.”); Dellis
v. Corr. Corp. of Am., 257 F.3d 508, 510 n.1 (6th Cir. 2001) (“We note that Plaintiff also

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requested injunctive and declaratory relief in his complaint; however, because he is no longer
incarcerated in either Hardeman County Correctional Facility or Whiteville Correctional
Facility, these prayers for relief are moot.”); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.
1996) (“However, to the extent Kensu seeks declaratory and injunctive relief his claims are
now moot as he is no longer confined to the institution that searched his mail.”). Thus, there
was no error.
Then, contradicting his previous arguments and his complaint, Plaintiff argues that
he has never asked for declaratory relief. Plaintiff’s complaint states: “I would like the court
to issue a declaratory judgement [sic] stating that all the defendants deliberately and
maliciously violated my constitutional rights, under color of law, as explained in my
complaint.” (Dkt. No. 1, PageID# 33.) Plaintiff now claims that this statement “merely asks
the court to enter an Order (called an initial screening process) and in its order define the
rights & privileges of the parties involved, or what’s expected of us.” (Dkt. No. 62, Attach.
1, at PageID# 484.) However, whether Plaintiff intended to seek declaratory relief through
the statement in his complaint is irrelevant. To the extent he was seeking declaratory relief
against Jackson, it was moot as just discussed. If he was not seeking declaratory relief, then
Jackson is still entitled to dismissal because all of the non-declaratory claims against him
were dismissed on account of absolute judicial immunity in the February 22 opinion and
order. (See Dkt. Nos. 7, 8.)
Last, Plaintiff argues that Jackson has no immunity to enter into a criminal conspiracy.

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Plaintiff misconstrues the law. A Michigan hearings officer is entitled to absolute immunity
for all actions taken in his hearing officer capacity. Barber v. Overton, 496 F.3d 449, 452
(6th Cir. 2007). Jackson’s decisions to find Plaintiff guilty of misconducts, even if these
decisions were somehow improperly motivated, were indisputably made in his hearing
officer capacity.
iv. Defendant Wakefield
Plaintiff argues that the Court acted as counsel for Defendant Wakefield by stating
that Plaintiff’s claim against him should be dismissed for failure to state a claim, a defense
that Wakefield did not raise. Plaintiff is correct that Wakefield never argued for dismissal
for failure to state a claim and instead only argued for summary judgment for failure to
exhaust administrative remedies. However, the Magistrate Judge was permitted to sua sponte
dismiss the claims against Wakefield for failure to state a claim on which relief may be
granted because Plaintiff brought this suit in forma pauperis, 28 U.S.C. § 1915(e)(2), and
alternatively because Plaintiff was a prisoner bringing a § 1983 suit with respect to prison
conditions, 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c).
Plaintiff further argues that the fact that the Magistrate Judge acknowledged
Plaintiff’s injury but declared it inconsequential establishes Wakefield’s guilt. On the
contrary, when a First Amendment retaliation claim is brought on the basis of an
inconsequential injury, the claim is properly dismissed as a matter of law. Wurzelbacher v.
Jones-Kelley, 675 F.3d 580, 584 (6th Cir. 2012).

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Last, Plaintiff argues that the R&R failed to account for the four theft tickets written
out of retaliation and on Wakefield’s order. Plaintiff never alleged in his complaint that
Wakefield ordered any officer to write a theft ticket. Instead, the complaint only alleges that
Wakefield ordered multiple “shakedowns.” (Dkt. No. 1, at PageID# 31-32.) Plaintiff’s
response to the motions for summary judgment is also limited to allegations regarding
Wakefield ordering “shakedowns.” (Dkt. No. 39, at PageID# 348-49.) Consequently, the
Magistrate Judge’s failure to address Wakefield ordering the writing of four theft tickets was
not erroneous.
v. All Defendants
Plaintiff objects to the fact that the Magistrate Judge complained that he did not
submit any evidence. Plaintiff posits that he is relying on the exhibits Defendants provided,
which support his claims. The R&R rejected Plaintiff’s motions for summary judgment as
frivolous because Plaintiff bore the burden of establishing his entitlement to summary
judgment, and Plaintiff failed to submit any evidence to support his motions. (Dkt. No. 59,
at 3.) Contrary to Plaintiff’s objection, the exhibits submitted by Defendants do not establish
Plaintiff’s entitlement to judgment on any of his claims. Thus, the Magistrate Judge did not
err in denying these motions.
Plaintiff next objects to the Magistrate Judge’s conclusion that Defendants did not
have to answer Plaintiff’s cross-motions for summary judgment and motion for default. He
claims that the Magistrate Judge was illegally acting as defense counsel by making arguments

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for the defendants and speculating as to why they did not answer. The Magistrate Judge did
not commit any error. As the Magistrate Judge correctly noted, a party is not required to
respond to a motion. (Dkt. No. 59, at 4.) The Magistrate Judge never made arguments for
defense counsel or speculated as to why Defendants did not answer. The Magistrate Judge’s
comment that Defendants were resting on their previously filed briefs and evidence was
axiomatic given the fact they did not respond to Plaintiff’s motions.
Plaintiff also contends that the Magistrate Judge failed to apply the applicable law,
namely “parallel conspiracy.” He argues that exhaustion is not required as to defendants who
have engaged in a parallel conspiracy. The Court does not know what Plaintiff means by a
“parallel conspiracy.” Nevertheless, the argument is frivolous. Exhaustion of administrative
remedies is always required for prisoners bringing a § 1983 suit. 42 U.S.C. § 1997e(a).
Next, Plaintiff argues that the Magistrate Judge neglected the law on settlements
which appeared in Spruytte v. Govorchin, 961 F. Supp. 1094 (W.D. Mich. 1997). However,
the law on settlements, appearing in Spruytte or elsewhere, is inapplicable to the present suit
because, as the Magistrate Judge correctly noted, Plaintiff has produced no evidence that any
defendant ever entered into or violated any settlement agreement. (Dkt. No. 59, at 16.)
Plaintiff also objects to the Magistrate Judge’s summary of the grievances filed. He
points out that the Magistrate Judge indicated that four grievances, LRF-08-09-1021-28a,
LRF-08-09-1043-28a, LRF-08-09-1023-28a, LRF-08-09-1024-28a, were rejected as

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duplicates.2 He argues that the original grievances, of which these four were duplicates, were
not presented by Defendants. This is incorrect. The first two of these duplicate grievances
presented issues previously grieved in LRF-08-08-859-08a. (Dkt. No. 19, Exs. C, E.) That
grievance, LRF-08-08-859-08a, was attached by Defendants. (See Dkt. No. 19, Ex. J.) The
remaining two of these duplicate grievances presented issues previously grieved in LRF-0809-960-17i. (Dkt. No. 19, Exs. G, H.) Again, LRF-08-09-960-17i was attached by
Defendants. (See Dkt. No. 19, Ex. I.)
Plaintiff also argues that it was a contradiction for the Magistrate Judge to state that
the rejections of grievances implicating Defendants Sutherby, Galiton, and Watson were
upheld at Steps II and III, but then conclude that the administrative remedies against those
defendants were not exhausted.

This was not a contradiction.

As discussed, proper

exhaustion requires compliance with deadlines and procedural rules. See Woodford, 548
U.S. at 90. Thus, administrative remedies are not properly exhausted just because the
rejection of a grievance is appealed through Step III. Each grievance against Sutherby,
Galiton, and Watson that was appealed through Step III was rejected for failure to comply
with agency deadlines and/or procedural rules.
Next, Plaintiff argues that whether the purported settlement agreements acted as a
waiver of the exhaustion requirement was an issue of fact that should not have been decided

2

One of the grounds for the rejection of another grievance, LRF-08-04-366-28a, was that
it was a duplicate. (Dkt. No. 19, Ex. S.) However, this grievance regarded allegations that are
outside the scope of the instant complaint.
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by the Magistrate Judge. There was no issue of fact because there was no evidence
whatsoever that any settlement agreement existed. Relatedly, Plaintiff argues that it was the
Defendants’ burden to prove that the settlement agreements did not exist and that
Defendants’ silence is uncontroverted proof of their existence. Because Plaintiff failed to
create an issue of fact regarding the existence of settlement agreements, Defendants did not
have to come forward with any affirmative evidence. Plaintiff further contends that multiple
defendants will testify to the existence of the settlement agreements. This argument is
speculative, and Plaintiff’s assertion that Defendants will testify to the existence of
settlement agreements is unsupported.
Last, Plaintiff argues that the four misconduct tickets for theft on which he was found
not guilty are overwhelming evidence of the violation of his rights. Plaintiff has provided
no evidence that he was found not guilty on multiple misconduct tickets. Even if Plaintiff
did provide such evidence if would not be evidence that any of the defendants violated
Plaintiff’s rights as alleged in the complaint.
C. Second Motion for Extension
On April 11, Plaintiff filed a motion for an extension of time within which to file a
motion for reconsideration and within which to file a certificate of appealability, citing his
late receipt of certain photocopies previously unobtainable. Good cause having been shown,
the Court will grant the motion. Consequently, the Court will consider the motion for
reconsideration, which was filed on April 29, timely filed and will address it at this time.

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D. Motion for Reconsideration
The Western District of Michigan’s Local Civil Rules provide that a party that moves
for reconsideration must demonstrate that there is a palpable and misleading defect as well
as that a different result is required as a result of a correction of that defect. W.D. Mich.
LCivR 7.4(a). As a general rule, “motions for reconsideration which merely present the same
issues ruled upon by the Court shall not be granted.” Id.
Although there is no specific provision for a motion for reconsideration in the Federal
Rules of Civil Procedure, such a motion is to be evaluated as a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e). See Aero-Motive Co. v. William
Becker, No. 1:99-CV-384, 2001 WL 1699194, at *1 (W.D. Mich. Dec. 6, 2001) (citing Huff
v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982)). A motion for reconsideration is
an opportunity to “point out manifest error of law or present newly discovered evidence.”
Aero-motive, 2001 WL 1699194 at *1 (citing Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
Plaintiff presents the following arguments in favor of reconsideration of this Court’s
order approving and adopting the R&R, and judgment in favor of Defendants:
1. Defendants admitted they committed at least eight documented felonies
against the Plaintiff.
2. The facts are in dispute regarding the failure to exhaust administrative
remedies defense.
3. The Court entered judgment without addressing Plaintiff’s objections, which
were timely pursuant to the mailbox rule.
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4. The Plaintiff has just recently obtained copies of evidence that conclusively
establish Plaintiff’s entitlement to judgment in his favor.
5. The Court lacked jurisdiction to decide the summary judgment motions
because Defendants violated settlement agreements. Additionally, by entering
into settlement agreements, Defendants waived the burden of exhaustion.
6. Defendants lied to the Court and misrepresented the facts regarding whether
Plaintiff exhausted his administrative remedies.
7. Defendants were required to answer the retaliation and settlement claims
pursuant to this Court’s February 22, 2012, order.
8. The Magistrate Judge had a conflict of interest because he made arguments
on behalf of Wakefield.
9. Defendants were required to object to the R&R and to bring to the Court’s
attention a mistake the Magistrate Judge may have made.
10. Plaintiff’s criminal conviction is null and void (because he was a juvenile
and never had a juvenile waiver hearing), meaning that he has no obligation
to exhaust his administrative remedies.
11. Grievances cannot be filed on any issue involving the disciplinary process.
(Dkt. No. 66, at PageID# 557-58.) The Court has already addressed arguments 1-3, 5-8, and
11, which lack merit. Argument 9 is frivolous because no party is obligated to file an
objection to an R&R. Argument 10 is also frivolous because Plaintiff, as a prisoner suing
with respect to prison conditions under § 1983, was required to exhaust his administrative
remedies. 42 U.S.C. § 1997e(a).
Plaintiff’s only remaining ground for reconsideration is based on newly obtained
evidence. (See Dkt. No. 63, Exs. A-E.) None of this evidence establishes a palpable and
misleading defect in this Court’s order approving and adopting the R&R.
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Exhibit A is a receipt indicating that Plaintiff’s first motion for extension and the
attached objections were mailed on March 20, 2013. (Dkt. No. 63, Ex. A.) This Court has
already accepted this receipt as evidence that Plaintiff’s objections to the R&R were timely
filed. Because the Court has considered those objections on the merits in this opinion,
Exhibit A does not justify further reconsideration.
Exhibit B contains the documents related to grievance LRF-08-05-00489-28b and
purportedly establishes the existence of a settlement agreement. (Dkt. No. 63, Ex. B.)
Exhibit B does no such thing. Instead, Exhibit B contains a statement by Plaintiff that a prior
grievance against Cashler “was settled” with an agreement that Cashler “would refrain from
any further harassment or retaliation.” (Ex. B, PageID# 513-14.) Plaintiff then stated that
Cashler proceeded to violate the agreement. (Id.) As a result, Plaintiff sought a “reinvestigation” of “all issues” related to the prior grievance. (Id. at 514.)

Plaintiff’s

unsubstantiated statements about a settlement in the grievance file is not evidence of any
such settlement agreement. As the Step Three Response makes clear, “[t]he Grievant did not
provide sufficient evidence to corroborate his allegations.” (Id. at 515.) Moreover, this is
not new evidence. Defendants attached this grievance to their brief filed on May 9, 2012.
(Dkt. No. 19, Ex. Q.)
Exhibit C is an appeal of a minor misconduct appeal Plaintiff received for lying in a
grievance. (Dkt. No. 63, Ex. C.) Plaintiff argues that this exhibit also establishes the
existence of a settlement agreement. However, Exhibit C consists only of Plaintiff’s

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statements, which as with the statements in Exhibit B, do not establish the existence of a
settlement agreement. Nevertheless, Exhibit C does indicate that Plaintiff exhausted his
administrative remedies with regard to his claim that the minor misconduct ticket was written
by Minnerick in retaliation because MDOC policy requires the filing of such an appeal for
exhaustion. (See Dkt. No. 19, Ex. A, at ¶ KK.)
However, the Court finds Plaintiff’s allegation that Minnerick wrote the misconduct
ticket in retaliation to be frivolous and completely devoid of support, and dismisses the claim
pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A, and 42 U.S.C. § 1997e(c) for failure to state
a claim upon which relief may be granted. The ticket Minnerick wrote was approved by the
warden and given to Plaintiff because grievance LRF-08-04-00365-17i, in which Plaintiff
accused Cashler of various wrongdoings, was dismissed as completely lacking support. (Dkt.
No. 19, Ex. R.) “If a grievant intentionally files a grievance which is investigated and
determined to be unfounded which, if proven true, may have caused an employee or a
prisoner to be disciplined or an employee to receive corrective action, the grievant may be
issued a misconduct report if approved by the warden . . . .” (Dkt. No. 19, Ex. A, Policy
Directive 03-02-130, ¶ L.) Even if Plaintiff’s allegations that the grievance was not falsified
were accepted as true, his allegations that Minnerick somehow knew that Plaintiff was telling
the truth in the grievance consist solely of multiple levels of hearsay. (See Dkt. No. 1, at
PageID# 16.)

The Court is not required to accept such conclusory allegations and

unwarranted factual inferences. In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896,

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903 (6th Cir. 2009). Thus, to the extent Plaintiff’s claim against Minnerick was exhausted,
the Court dismisses it for failure to state a claim.
Exhibit D consists of a series of eight letters written by Plaintiff. The first letter is a
cover letter to “Director Patricia Caruso” which indicates that Plaintiff was enclosing seven
grievances “for step III exhaustion purposes.” (Dkt. No. 63, Ex. D, at PageID# 525.) The
seven “grievances” enclosed consisted of the following: (a) one letter to a “Warden
Berghuis” seeking to be treated as a Step II grievance form; (b) one letter to a “Deputy
Smith” in which Plaintiff contends the letter constitutes an exhaustion of his administrative
remedies; and (c) five letters to an “Inspector Walton” discussing issues Plaintiff wished to
grieve but could not because he was on Modified Grievance Status. Exhibit D does not
establish exhaustion of administrative remedies. “Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90.
MDOC policy requires a Step I grievance to be filed on form CSJ-47A and Steps II and III
grievances to be filed on form CSJ-247B. (Dkt. No. 19, Ex. A, Policy Directive 03-02-130,
¶ R.) Prisoners are not permitted to make a grievance via letters. Moreover, MDOC policy
permits a warden to limit a prisoner’s access to the grievance process if the prisoner “files
an excessive number of grievances which are vague, duplicative, raise non-grievable issues
. . . or is found guilty of misconduct for filing an unfounded grievance . . . .” (Id. at ¶ HH.)
Prisoners on modified access must still use form CSJ-47A for a Step I grievance, but this
form may only be obtained from the Step I Grievance Coordinator upon a showing that the

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intended grievance will comply with MDOC policy. (Id. at ¶ KK.) Thus, the documents
provided in Exhibit D do not establish proper exhaustion in accordance with Woodford.
Last, Exhibit E is a Security Classification Screen Review which Plaintiff contends
was falsified. (Dkt. No. 63, Ex. E.) Plaintiff has offered no evidence that this review was
falsified and submitting the review itself is not evidence of any falsification. Thus, Exhibit
E does not demonstrate a palpable and misleading defect with this Court’s order approving
and adopting the R&R.
D. Conclusion
In sum, Plaintiff’s objections to the R&R and motion for reconsideration of this
Court’s March 25 order approving and adopting the R&R lack merit. While Plaintiff’s
objections will be considered timely filed, the Court will affirm its March 25 order and
judgment.
According to 28 U.S.C. § 1915(a)(3), an appeal may not be taken in forma pauperis
if the district court certifies in writing that it is not taken in good faith. For the reasons stated
in this opinion, the Court certifies, pursuant to § 1915(a)(3), that an appeal of this matter
would be frivolous and not taken in good faith.
An order consistent with this opinion will be entered.

Dated: May 10, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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