United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
L. MALONEY UNITED STATES DISTRICT JUDGE
Nunn is a prisoner under the control of the Michigan
Department of Corrections. He filed a lawsuit under 42 U.S.C.
§ 1983, alleging violations of his constitutional
rights. Several of the claims have already been dismissed.
Defendants filed a motion for summary judgment, alleging that
Plaintiff failed to exhaust his administrative remedies and
requesting dismissal of the remaining claims. The magistrate
judge reviewed the motion and issued a report recommending
the motion be granted.
being served with a report and recommendation (R&R)
issued by a magistrate judge, a party has fourteen days to
file written objections to the proposed findings and
recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). A district court judge reviews de novo the portions of
the R&R to which objections have been filed. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Only those objections
that are specific are entitled to a de novo review under the
statute. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986) (per curiam).
were due on November 19, 2017. Plaintiff timely sent a letter
to the Court mentioning the R&R. (ECF No. 42.) In the letter,
he states he sent a letter to the grievance coordinator
"base[d] on a step 2 grievance form." (PageID.197.)
Plaintiff then filed a motion for extension of time to file
objections. (ECF No. 40.) That motion was granted.
(ECF No. 44.) Plaintiff filed objections. (ECF No. 45.)
magistrate judge concluded Plaintiff failed to exhaust his
administrative grievances. The R&R identifies two
grievances. Step 1 of the 0328 grievance was denied on March
8, 2016. Step 1 of the 0329 grievance was denied on March 22.
The lawsuit was filed on March 24, 2016.
objects to the recommendation that the complaint be
dismissed, reasoning that he must exhaust only those remedies
that are available. See Ross v. Blake, 136 S.Ct.
1850, 1855 (2016). Plaintiff asserts that his Step 1
grievance as rejected on July 21, 2016, and that he wrote
multiple kites the grievance coordinator seeking a Step 2
form, but one has not been provided. As evidence, Plaintiff
attaches an affidavit. (PageID.207.) Plaintiff concludes that
he has exhausted the available remedies.
objection is OVERRULED. Plaintiff concedes that his
administrative remedies have not been exhausted. A prisoner
must exhaust grievance procedures prior to filing
the lawsuit. Williams v. Norton, 23 Fed.Appx. 396,
397 (6th Cir. 2001). A prisoner may not exhaust the grievance
procedure during the pendency of the lawsuit. Harbin-Bey
v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005). When a
prisoner files his or her federal lawsuit before the
completion of the grievance process, the complaint must be
dismissed. See Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999).
evidence in the record contradicts most of the assertions in
the affidavit attached to Plaintiff's objections.
Plaintiff filed this lawsuit on March 24, 2016, approximately
two weeks after one of his grievances was denied and a few
days after the other grievance was denied. Plaintiff could
not have sent multiple kites to the grievance coordinator
requesting a step 2 form during that limited time. In the
letter Plaintiff sent to the Court in November 2017,
Plaintiff states that he "was just inform[ed] that [he]
still can go to step 2 even though my step one was
rejected." (PageID.197.) If he was recently made aware
of a step 2 appeal, then Plaintiff would not have been
sending multiple kites requesting a step 2 form to the
grievance coordinator more than one year earlier.
Furthermore, Plaintiff's assertion that his grievance was
rejected in July 2016 is contradicted by the record. And,
Plaintiff's assertion makes little sense in the context
of this lawsuit. To accept Plaintiff's statement, that
his grievance was not denied until July, would mean that
Plaintiff filed this lawsuit months before his
grievance was rejected.
these reason, the Report and Recommendation (ECF No. 39) is
ADOPTED as the Opinion of this Court.
Defendants' motion for summary judgment (ECF No. 32) is
GRANTED. Plaintiff's claims are
dismissed without prejudice.
the Court DENIES a certificate of appealability. This point
of law is well-settled and reasonable jurists would not
disagree without the manner in which Defendants' motion
was resolved. IT IS SO ORDERED.
 The postal stamp on the envelope
indicates the letter was mailed on November 13.
 The postal stamp on the envelope
indicated the motion was mailed on November 14.