United States District Court, E.D. Michigan, Southern Division
Matthew F. Leitman United States District Judge
REPORT AND RECOMMENDATION DEFENDANT NATALIE
SOUDER'S MOTION FOR SUMMARY JUDGMENT (DKT. 20)
Stephanie Dawkins Davis United States Magistrate Judge
September 9, 2015, plaintiff Marcus Hanserd filed the instant
action alleging a violation of his First Amendment rights
against defendant Natalie Souder (Ms. Souder, or
Souder). (Dkt. 1). Plaintiff is a pro se
prisoner who is currently confined in the Michigan Department
of Corrections (MDOC), at the Chippewa Correctional Facility
(URF) in Kincheloe, Michigan. The actions that gave rise to
the events in plaintiff's complaint, however, took place
while plaintiff was incarcerated at the St. Louis
Correctional Facility (SLF), in St. Louis, Michigan. On
October 13, 2015, District Judge Matthew F. Leitman referred
this case to Magistrate Judge Michael Hluchaniuk for all
pretrial purposes. (Dkt. 6). The case was referred to
Magistrate Judge Stephanie Dawkins Davis for all pretrial
purposes on June 2, 2016. (Dkt. 19). Defendant Souder filed a
motion for summary judgment on July 29, 2016 (Dkt. 20), and
plaintiff responded on September 30, 2016 (Dkt. 23).
matter is now is ready for Report and Recommendation. For the
reasons set forth below, the undersigned RECOMMENDS that
defendant's motion for summary judgment be GRANTED
because plaintiff failed to exhaust his retaliation claim and
his complaint should be DISMISSED without prejudice.
Natalie Souder is a registered nurse employed by MDOC at SLF.
Plaintiff alleges that on May 28, 2015, Souder examined him
pursuant to his request to be properly fitted for a pair of
Deep Toe Box (DTB) shoes. According to plaintiff, Souder
examined him and then informed him that there was nothing
wrong with his feet and that he did not require medical
shoes. On the other hand, Souder indicates that on May 28,
2015, she examined plaintiff whose main complaint was foot
discomfort. At that time, she was aware that in 2012 the
Regional Medical Officer (RMO) had approved plaintiff for DBT
shoes. (Dkt. 20, Ex. A, Souder Aff. at ¶ 5). Based on
her May 28, 2015 assessment, Souder testified that she
referred plaintiff to the medical provider for further
evaluation, including an updated RMO approval for his DBT
shoes. (Id. ¶ 6; see also Dkt. 20-2,
MDOC Nurse Protocol, dated 5/28/15, Pg ID 111). On June 3,
2015, plaintiff was seen by the Medical Provider who
concluded that plaintiff could either wear his current pair
of DBT shoes, or purchase other shoes from the prisoner
catalogue. (Id. ¶ 7; see also Dkt.
20-2, MDOC Bureau of Health Care Services Notes, dated
6/3/15, Pg ID 112).
also alleges that on June 16, 2015, Souder issued him a false
misconduct violation for sexual misconduct in retaliation for
the administrative grievance that plaintiff had filed
regarding his May 28, 2015 medical exam. Souder acknowledges
that on June 16, 2015, she issued plaintiff a Class I
violation for sexual misconduct. (Dkt. 20, Ex. A, Souder Aff.
¶ 11; see also Dkt 20-2, Misconduct Report, Pg
ID 114). According to the misconduct report, on that day, a
segregation unit staff member announced nurse rounds and
“female in unit” over the PA system. When Souder
approached plaintiff's cell, he was standing at his
toilet masturbating and looking directly at her. Plaintiff
made no attempt to cover himself or stop “stroking his
penis.” Following a Class I Misconduct Hearing,
plaintiff was found guilty of the misconduct charge. (Dkt.
20-2, Pg ID 115).
sues Souder in her individual and official capacities, and
seeks undisclosed compensatory and punitive damages.
court notes at the outset that while Souder briefed that
there was also no Eighth Amendment violation under the facts
outlined by the complaint, in response, plaintiff made clear
that he was not pursuing an Eighth Amendment claim. As such,
the undersigned will not engage in an Eighth Amendment review
and, to the extent plaintiff ever had a claim under the
Eighth Amendment, he has voluntarily abandoned it.
42 U.S.C. § 1997e(a) 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.” Section 1997e(a)'s
“exhaustion requirement applies to all prisoners
seeking redress for prison circumstances or
occurrences.” Porter v. Nussle, 534 U.S. 516,
520 (2002). “[T]he PLRA's exhaustion requirement
applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other
wrong.” Porter, 534 U.S. at 532. In Jones
v. Bock, 549 U.S. 199 (2007), the Supreme Court held
that “failure to exhaust is an affirmative defense
under the PLRA, ” and “inmates are not required
to specially plead or demonstrate exhaustion in their
complaints.” Jones, 549 U.S. at 216.
“Compliance with prison grievance procedures . . . is
all that is required by the PLRA to ‘properly
exhaust.'” Jones, 549 U.S. at 218.
“Congress has provided in § 1997e(a) that an
inmate must exhaust irrespective of the forms of relief
sought and offered through administrative avenues.”
Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
“[P]roper exhaustion of administrative remedies is
necessary.” Woodford v. Ngo, 548 U.S. 81, 84
(2006); Brown v. Toombs, 139 F.3d 1102 (6th Cir.),
cert. denied, 525 U.S. 833 (1998) (No federal action
shall be brought until such administrative remedies as are
available are exhausted). In other words, a prisoner may not
exhaust administrative remedies during the pendency of the
federal lawsuit. Larkins v. Wilkinson, 1998 WL
898870, at *2 (6th Cir. Dec. 7, 1998).
Jones v. Bock, the Supreme Court also held that the
burden rests on the defendant to show that a plaintiff failed
to exhaust when asserting exhaustion as an affirmative
defense. Id. Accordingly, exhaustion is satisfied if
plaintiff complied with the applicable grievance procedures
and defendants bear the burden of showing otherwise. See
Kramer v. Wilkinson, 226 Fed.Appx. 461, 462 (6th Cir.
2007) (a prisoner-plaintiff “does not bear the burden
of specially pleading and ...