RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0119p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MARK ANTHONY REED-BEY,
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Plaintiff - Appellant,
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No. 08-1774
v.
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>
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GEORGE PRAMSTALLER, RICHARD D.
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RUSSELL, BUREAU OF HEALTH CARE
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MICHIGAN DEPARTMENT OF CORRECTIONS,
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CORRECTIONAL MEDICAL SERVICES,
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INCORPORATED, MICHIGAN DEPARTMENT OF
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CORRECTIONS, S. VADLAMUDI, CAROLYNN
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DUBUC, ANDREW JACKSON, JUSTINA NZUMS
and RUTH INGRAM, -
Defendants-Appellees. N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-10934—Victoria A. Roberts, District Judge.
Submitted: April 22, 2010
Decided and Filed: April 28, 2010
Before: GUY, BOGGS and SUTTON, Circuit Judges.
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COUNSEL
ON BRIEF: Clifton B. Schneider, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, James T. Mellon, MELLON, McCARTHY & PRIES, P.C.,
Troy, Michigan, for Appellees. Mark Anthony Reed-Bey, Ionia, Michigan, pro se.
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OPINION
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SUTTON, Circuit Judge. Mark Anthony Reed-Bey, a Michigan inmate, appeals a
district court’s judgment dismissing his § 1983 lawsuit against Michigan prison officials on
the ground that he did not exhaust his claim. See 42 U.S.C. § 1997e(a). Reed-Bey pursued
1
No. 08-1774 Reed-Bey v. Pramstaller, et al. Page 2
his grievance through all three levels of prison review, yet he failed to identify the “names
of all those involved” in the grievance, as the prison’s grievance procedures require. R.42-6
¶ T. Because the Michigan Department of Corrections opted to dismiss his grievance on the
merits rather than invoke its procedural bar, Reed-Bey exhausted his claim. We reverse and
remand.
I.
On September 12, 2005, Reed-Bey injured his shoulder during a prison basketball
game, sufficiently badly that one of the bones was visibly out of place. That evening, an
emergency-room physician diagnosed Reed-Bey with a Grade III acromioclavicular
separation and ligament damage. The emergency-room physician discharged Reed-Bey later
that night and recommended that he see an orthopedic specialist within five days.
Prison officials did not send Reed-Bey to an orthopedic specialist until December 1,
even though he requested follow-up care at least four times in the interim and even though
an October 25 X-ray showed that the shoulder separation had worsened. On December 1,
the specialist told Reed-Bey that his shoulder required surgery and that the shoulder pain and
accompanying headaches—some lasting up to three days—would persist until doctors fixed
his shoulder. Prison officials did not approve his shoulder surgery until some time after
March 2006.
On October 10, 2005, Reed-Bey filed a prison grievance complaining about the lack
of follow-up care for the injury. When the prison failed to respond within 15 business days,
as required by prison policy, he filed a Step II grievance appeal on November 3. On
November 18, Nurses Nzums and Ingram rejected Reed-Bey’s initial grievance, noting that
prison officials had requested an orthopedic consultation but were awaiting approval from
Correctional Medical Services, a private health-management company hired by the State of
Michigan to provide medical services for the Department of Corrections. When prison
officials failed to respond to his Step II appeal by the required deadline, Reed-Bey filed a
Step III appeal with the Director of Prisons on December 6. On December 28, Carolynn
DuBuc, a health unit manager, belatedly denied Reed-Bey’s Step II appeal because his care
complied with “contemporary standards of medical practice in the community” and because
the prison health staff had given him adequate pain medication. R.1 Ex. D at 2. On
No. 08-1774 Reed-Bey v. Pramstaller, et al. Page 3
March 20, two months after the deadline for resolving Reed-Bey’s Step III appeal had
passed, the Director of Prisons denied Reed-Bey’s Step III appeal on the merits.
On March 1, 2006, Reed-Bey sued the Michigan Department of Corrections and
Correctional Medical Services, along with several employees of both entities, alleging that
they violated his Eighth (and Fourteenth) Amendment rights by denying him adequate
medical care. Roughly a month later, the district court summarily dismissed the lawsuit
because Reed-Bey did not properly exhaust his administrative remedies by naming all of the
defendants in his initial grievance, as required under the Prison Litigation Reform Act of
1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321-66—or so we (and the district court)
thought at the time. See Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003). Roughly a year
later, the Supreme Court overruled Burton’s interpretation of the PLRA, Jones v. Bock, 549
U.S. 199 (2007), and accordingly we vacated the district court’s decision in Reed-Bey and
remanded the case for further consideration.
On remand, CMS filed a motion to dismiss, again claiming that the PLRA barred
Reed-Bey’s lawsuit because he did not name CMS in his initial grievance. Because the
“name all defendants” rule was part of the Department of Corrections’ internal grievance
policies, CMS argued, the PLRA barred Reed-Bey’s suit, notwithstanding Jones v. Bock.
The Department of Corrections, Pramstaller, Russell and Vadlamudi moved for summary
judgment under the same theory. The district court granted both motions, and on its own
initiative it also dismissed Reed-Bey’s claims against DuBuc, Jackson, Nzums and Ingram.
II.
A.
Reed-Bey’s appeal presents one question: Did he properly exhaust his administrative
remedies despite failing to name a single individual in his initial grievance? If not, the
PLRA bars his claim. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006).
An inmate exhausts a claim by taking advantage of each step the prison holds out for
resolving the claim internally and by following the “critical procedural rules” of the prison’s
grievance process to permit prison officials to review and, if necessary, correct the grievance
“on the merits” in the first instance. Woodford, 548 U.S. at 90, 95 (internal quotation marks
No. 08-1774 Reed-Bey v. Pramstaller, et al. Page 4
omitted). Under the Department of Corrections’ procedural rules, inmates must include the
“[d]ates, times, places and names of all those involved in the issue being grieved” in their
initial grievance. R.42-6 ¶ T. These rules suggest a straightforward answer to the question
presented—“No”—because Reed-Bey did not identify the “names of all those involved in
the issue being grieved.”
But this case comes with a twist. Officials at the Department of Corrections, for
reasons of their own, overlooked (or perhaps forgave) this procedural failing and chose to
address Reed-Bey’s grievance on the merits. That makes a difference. The point of the
PLRA exhaustion requirement is to allow prison officials “a fair opportunity” to address
grievances on the merits, to correct prison errors that can and should be corrected and to
create an administrative record for those disputes that eventually end up in court. Woodford,
548 U.S. at 94–95; see Porter v. Nussle, 534 U.S. 516, 525 (2002). Requiring inmates to
exhaust prison remedies in the manner the State provides—by, say, identifying all relevant
defendants—not only furthers these objectives, but it also prevents inmates from
undermining these goals by intentionally defaulting their claims at each step of the grievance
process, prompting unnecessary and wasteful federal litigation in the process. See
Woodford, 548 U.S. at 94–96.
Yet the equation changes when the State does not enforce its own rules. When
prison officials decline to enforce their own procedural requirements and opt to consider
otherwise-defaulted claims on the merits, so as a general rule will we. See Vandiver v.
Correctional Med. Servs., Inc., 326 F. App’x 885, 891 (6th Cir. 2009). In that setting, the
State, as the promulgator of the rules, has had a chance to provide a remedy for the inmate
and to decide whether the objectives of the review process have been served. When the State
nonetheless decides to reject the claim on the merits, who are we to second guess its decision
to overlook or forgive its own procedural bar? The rules serve the State’s interests: its
interest in creating a prison grievance system, its interest in reviewing a complaint before
another sovereign gets involved and its interest in deciding when to waive or enforce its own
rules. And the State’s decision to review a claim on the merits gives us a warrant to do so
as well, even when a procedural default might otherwise have resolved the claim.
No. 08-1774 Reed-Bey v. Pramstaller, et al. Page 5
At least three circuits have come to the same conclusion. See Riccardo v. Rausch,
375 F.3d 521, 524 (7th Cir. 2004) (overlooking the untimeliness of a grievance, over the
objection of the defendants, where prison officials reviewed grievance on the merits); Ross
v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (same), abrogated on other
grounds by Jones, 549 U.S. 199; Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)
(overlooking failure to file grievance with the proper officials, over the objection of the
defendants, where officials ultimately reviewed grievance on the merits). No circuit to our
knowledge has come to a different conclusion.
This approach also parallels the rules for “the similar statutory scheme governing
habeas corpus,” Jones, 549 U.S. at 212. See Coleman v. Thompson, 501 U.S. 722, 731–32
(1991); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (drawing the same
analogy). In habeas, “a procedural default does not bar consideration of a federal claim . . .
unless the last state court rendering a judgment in the case clearly and expressly states that
its judgment rests on a state procedural bar,” or it is otherwise clear they did not evaluate the
claim on the merits. Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation marks
omitted); see Coleman, 501 U.S. at 735–36. Exhaustion and procedural default principles
in federal habeas, as in the PLRA, serve many of the same goals: to conserve scarce judicial
resources, to avoid needless federal judicial decisions and above all to give state officials
a realistic opportunity to correct their own mistakes before federal courts intervene. See
Massaro v. United States, 538 U.S. 500, 504 (2003); Coleman, 501 U.S. at 731–32. It makes
considerable sense to adopt similar approaches in addressing similar concerns under the two
regimes. Cf. Harris, 489 U.S. at 263.
The Department of Corrections argues that this approach overlooks the key insight
of the Supreme Court’s decision in Woodford: If courts do not penalize inmates for ignoring
grievance policies, they will reward inmates for failing to give prison officials “a fair
opportunity to correct their own errors.” 548 U.S. at 94–95. But our decision by no means
encourages inmates intentionally to default their grievances. See id. at 95–96. We still will
honor procedural rules that prison officials themselves enforce, and that reality should give
inmates all the incentive they need to seek—and obtain—merits review of their grievances.
No. 08-1774 Reed-Bey v. Pramstaller, et al. Page 6
Enforcing internal prison rules even when prison officials do not and even when they
proceed to address a grievance on the merits takes Woodford one step too far. It would do
more than ensure that prison officials get the first shot at correcting their own mistakes; it
would give their merits-based grievance denials undeserved insulation from federal judicial
review. Under this approach, we could never review, for example, whether the Department
of Corrections properly concluded that Reed-Bey’s allegations of unconstitutional treatment
lack merit. The Department would dismiss any subsequent grievance related to his 2005
medical care as untimely, because he has only seven business days after an incident to file
a grievance. We then would dismiss any future § 1983 suits related to his 2005 medical
treatment due to improper exhaustion. See 42 U.S.C. § 1997e(a).
What interest such an approach would advance is hard to see. It would do nothing
to further any of the goals of proper exhaustion under the PLRA. It would not incentivize
good-faith efforts at exhaustion. See Woodford, 548 U.S. at 90. It would not avoid
otherwise needless interference with prison administration. See id. at 93. It would not
promote efficiency. See id. at 89. And it would not produce an otherwise unavailable record
for future judicial proceedings, as future judicial proceedings would be foreclosed and the
relevant record already exists. See Nussle, 534 U.S. at 525. We see no benefit to enforcing
a procedural bar that the Department of Corrections did not. We instead conclude that Reed-
Bey properly exhausted his claim because he invoked one complete round of the
Department’s grievance procedures and received merits-based responses at each step.
B.
When CMS was the only defendant in the case to file a response merits brief, Reed-
Bey asked that we bar the other defendants from filing response briefs and tax his appellate
costs against all the defendants. We deny Reed-Bey’s motion to strike any untimely briefs,
but he may collect the costs of his appeal in accordance with Appellate Rule 39.
III.
For these reasons, we reverse the district court’s summary judgment order in favor
of the Department of Corrections, the Bureau of Health Care, Pramstaller, Russell and
Vadlamudi; its Rule 12(h)(3) dismissal of DuBuc, Jackson, Nzums and Ingram; and its Rule
No. 08-1774 Reed-Bey v. Pramstaller, et al. Page 7
12(b)(6) dismissal of CMS. The district court should consider CMS’s alternative theory that
Reed-Bey failed to plead a viable § 1983 claim on remand.