NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0628n.06
Filed: July 27, 2005
No. 04-2034
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TIMOTHY WILLIAMS, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
B. MCLEMORE, Warden; JOHN DOE, Deputy ) MICHIGAN
Warden, SMI; H. WHITE, Warden, SMI; H. WARR, )
Officer; JOHN DOE; and WILLIAM BAILEY, )
)
Defendants-Appellees. )
Before: SILER and GIBBONS, Circuit Judges; STAFFORD, District Judge.*
PER CURIAM. Timothy Williams, a state prisoner in Michigan, appeals a grant of
summary judgment to Warden Barry McLemore, Assistant Deputy Warden William Bailey, Acting
Warden Harold White, and Corrections Officer Harold Warr (collectively “Defendants”), based on
failure to properly plead exhaustion of administrative remedies as required by the Prison Litigation
Reform Act (“PLRA”). Williams also argues that the district court did not fulfill its statutory duty
to serve an additional proposed defendant, Deputy Warden Connie Anderson. For the reasons stated
hereafter, we REVERSE and REMAND.
BACKGROUND
*
The Honorable William H. Stafford, Jr., United States District Judge for the Northern
District of Florida, sitting by designation.
No. 04-2034
Williams v. McLemore
On January 13, 1998, Williams handed a note to a corrections officer in which he stated that
he had enemies and he feared for his life. In response to Williams’s fears, prison officials moved
him from the Josephine McCallum Facility (“JMF”) to the State Prison of Southern Michigan
(“SMI”) the next day. When guards arrived to take Williams to a meeting of the Security
Classification Committee (“SCC”), he refused to be handcuffed behind his back in the normal
manner. Instead, Williams insisted that he be handcuffed in the front with special large cuffs
because of painful tumors present on his arms and wrists.
Deputy Warden Anderson allegedly told the guards that Williams had no medical problems,
he did not need special cuffing, and that he would have to submit to normal cuffing or forfeit his
interview with the SCC. He refused to submit to normal cuffing, and, as a result, Anderson declared
the interview forfeited. Williams resisted transfer from SMI back to JMF and received two major
misconduct tickets in the process. He filed two grievances and pursued the three-step process for
each grievance. Officials denied one grievance at all three steps, but at the third step of the other
grievance, the official report strongly implied that Williams should get another hearing with the
SCC.1 The report did not specifically order the warden to give him another hearing with the SCC,
however, and prison officials returned him to the general population at JMF. Shortly thereafter,
unknown assailants stabbed him.
1
Referring to the previous grievance steps, the report stated “it appears there were a number
of errors in this response.” The third-step respondent ordered that a copy of the report be sent to the
Warden’s office “to ensure appropriate action is taken on this issue” without specifically stating
what this action should be. The respondent also stated “this grievance is considered resolved.”
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No. 04-2034
Williams v. McLemore
Williams filed a complaint alleging, inter alia, a violation of his Eighth Amendment rights
based on failure to protect and a violation of the Americans with Disabilities Act. The district court
granted him leave to file a second amended complaint, but then refused to serve it on the defendants
and granted them summary judgment. On appeal, this court vacated the district court’s grant of
summary judgment, ordered the district court to serve the defendants, and remanded for further
proceedings. Williams v. McLemore, No. 00-1302 (6th Cir. Feb. 1, 2001). In 2004, the district court
again granted Defendants’ motion for summary judgment on the basis that Williams failed to
properly plead exhaustion of his administrative remedies as required by the PLRA. Because the
Marshals had never served her, the court stated in a footnote that Anderson was not a party.
ANALYSIS
Pleading of Exhaustion
The district court granted Defendants summary judgment on the grounds that Williams failed
to properly plead exhaustion of his administrative remedies in his original complaint. We review
a grant of summary judgment de novo. Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995).
The PLRA states that “[n]o action shall be brought with respect to prison conditions under
section 1983 . . . by a prisoner . . . until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The Defendants do not dispute exhaustion of administrative remedies here;
rather, they dispute whether Williams has properly pleaded exhaustion. Despite having allowed him
to file two amended complaints, the district court only examined Williams’s original complaint for
sufficiency of pleading exhaustion. It cited Baxter v. Rose, 305 F.3d 486 (6th Cir. 2002), for the
proposition that “[e]xhaustion of administrative remedies must have been pled in the original
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No. 04-2034
Williams v. McLemore
complaint.” After concluding that the original complaint lacked the particularized averments
necessary for pleading exhaustion, the district court granted the Defendants summary judgment
against all of Williams’s claims.
While a prisoner may not amend his complaint to cure deficiencies in pleading exhaustion,
Baxter, 305 F.3d at 490, there is no authority for the proposition that, after a prisoner has been
allowed to amend his complaint, the district court must only examine the original complaint for
sufficiency of pleading exhaustion. Baxter is distinguishable from the present case because the
magistrate judge in Baxter consistently refused to allow the plaintiff to amend his complaint. Id. at
487. Baxter did not hold that once a plaintiff has been allowed to amend his complaint, the court
may only look to the original complaint to determine whether exhaustion has been pleaded correctly.
See id. at 490.
Because the district court allowed Williams to amend his complaint, it should have examined
his second amended complaint for pleading exhaustion. He attached a copy of the disposition of his
grievances to all of his complaints, but his second amended complaint gives much more detail than
his original complaint. The second amended complaint contains “particularized averments
concerning exhaustion showing the nature of the administrative proceeding and its outcome.”
Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). Thus we reverse summary judgment in
favor of the Defendants and remand for further proceedings.
Duty to Serve
This court previously ordered the district court to serve all defendants, including Anderson,
as it is obligated to do when a plaintiff proceeds in forma pauperis. See 28 U.S.C. § 1915(d); Fed.
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No. 04-2034
Williams v. McLemore
R. Civ. P. 4(c)(2); Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). Service may be made “pursuant
to the law of the state in which the district court is located.” Fed. R. Civ. P. 4(e)(1). Michigan law
allows sending a summons and complaint “by registered or certified mail, return receipt requested,
and delivery restricted to the addressee.” Mich. Ct. R. 2.105(A)(2).
The U.S. Marshal attempted to serve Anderson through the mail. Because Anderson no
longer worked for the Michigan Department of Corrections, the summons and complaint were
returned to the Marshal as undeliverable on March 9, 2001. The record does not indicate any further
attempts to serve Anderson. The first mention of Anderson after the attempted service came in a
footnote to the district court’s order dated June 27, 2002. The footnote stated: “Anderson was
originally named as a Defendant to this action. Presently she is not a party to this action.”
(emphasis added). In March 2004 Williams moved for partial summary judgment and stated in the
accompanying memorandum that he “assumes that Defendant Anderson is properly pled as a
Defendant. If this is not so, [he] moves the Court to allow him to move for a default and/or correct
the proceedings as appropriate.” In July 2004, in granting Defendant’s motion for summary
judgment, the district court again stated in a footnote that Anderson is not a party.
The district court’s footnotes regarding Anderson’s non-party status were insufficient to give
Williams notice that he should show good cause why she had not been served in accordance with
Federal Rule of Civil Procedure 4(m). Because Williams did not receive sufficient notice that
Anderson was no longer a party, on remand, the district court shall extend the time period to serve
Anderson.
REVERSED and REMANDED.
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