United States District Court, E.D. Michigan, Southern Division
Steven Whalen U.S. Magistrate Judge.
ORDER DENYING PLAINTIFF'S MOTION FOR
J. Tarnow, Senior United States District Judge.
August 18, 2017, Plaintiff Jack Mann filed a Motion for
Reconsideration [Dkt. #107], asserting, among other things,
that he “has never been able to properly exhaust
remedies.” Mann asks the Court to reconsider its July
19, 2017 Order  in which it denied Plaintiff's
Motion to Hold Case in Abeyance and denied Plaintiff's
Motion to Reopen the Case.
September 4, 2014, Plaintiff filed his pro se
Complaint , alleging that the individual defendants -
Bureau of Prison (“BOP”) employees - retaliated
against him by denying him access to programs and good time
credit. Defendants sought dismissal due to
Plaintiff's failure to exhaust his administrative
remedies. Attached to Defendant's Motion to Dismiss
and/or for Summary Judgment  was the sworn declaration of
Cynthia Suydam, the Associate Warden's secretary at FCI
Milan where Plaintiff was incarcerated. According to the
declaration, Ms. Suydam reviewed the BOP's database
(“SENTRY”) for records pertaining to Plaintiffs
requests for administrative remedies. She found that
Plaintiff did not file a request for administrative remedy
until October 2014, after he filed the Complaint in this
case. See Dkt. 28-3.
January 27, 2016, after the appropriate briefing by both
parties, the Magistrate Judge issued a Report and
Recommendation (“R&R”)  advising the
Court to dismiss the case without prejudice due to
Plaintiff's failure to exhaust administrative remedies
pursuant to the Prison Litigation Reform Act
(“PLRA”). The Court adopted the R&R on March
31, 2016  and dismissed the case without prejudice. The
Court entered Judgment  the same day. Plaintiff filed a
number of post-judgment motions, all of which were denied.
See Dkt. 84-86, 91-92, 94, 96, 99, 101, 105, 106.
and again, as set forth below, Plaintiff has provided the
Court with contradictory information as to whether or not he
properly exhausted his administrative remedies:
• April 21, 2015 Motion for Summary Judgment :
Plaintiff stated that he had “exhausted all FTCA and
PRLA remedy requirements in a timely fashion.” (Dkt.
36, Pg. ID 308).
• April 21, 2015 Affidavit : Plaintiff submitted
that he “personally exhausted [his] PLRA and FTCA
remedies.” (Dkt. 37, Pg. ID 347).
• April 12, 2016 Motion to Alter or Amend Judgment :
Plaintiff claimed - for the first time - that he was
prevented from pursuing his administrative remedies pursuant
to the PLRA. (Dkt. 86, Pg. ID 1002) (“Mann was unable
to satisfy the remedy process because he was in the SHU at
the facility he was filing against.”).
• February 22, 2017 Motion for Notification to this
Court that Administrative Remedies Were Totally Unavailable
to Plaintiff Until He Arrived At Current Institution :
Plaintiff said that he had “a counselor at FCI Ashland
who he believes will allow him to start the remedy
process.” (Dkt. 101, Pg. ID 1095).
• July 17, 2017 Motion to Reopen Case : Plaintiff
stated that he “has exhausted his remedies as per the
instruction of this Honorable Court.” (Dkt 105, Pg. ID
current Motion for Reconsideration, Plaintiff now claims that
he “has never been able to properly exhaust
remedies.” (Dkt. 107, Pg. ID 1129). He also suggests
that because he is no longer incarcerated, “he is no
longer required to exhaust remedies to bring suit as he
should no longer be under the Prison Litigation Reform Act
Court is aware that the PLRA does not apply to non-prisoners.
See Cox v. Mayer, 332 F.3d 422, 424 (6th Cir.
2003). In addition, it is well-established that a
prisoner's lack of compliance with an institution's
administrative process may be excused “when the
improper actions of prison officials render the
administrative remedies functionally unavailable.”
Himmelreich v. Federal Bureau of Prisons, 766 F.3d
576, 577 (6th Cir. 2014).
case was dismissed without prejudice and is complete. A
dismissal without prejudice provides Plaintiff the benefit of
being able to file his case a second time. See McCloy v.
Correction Medical Services, 794 F.Supp.2d 743, 751
(E.D. Mich. 2011). Plaintiff may raise the issue of the
applicability of the PLRA if and when he decides to file a