                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0213n.06

                                           No. 10-2375
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS                               Feb 23, 2012
                               FOR THE SIXTH CIRCUIT
                                                                                LEONARD GREEN, Clerk
TORAN V. PETERSON,                                   )
                                                     )
       Plaintiff-Appellant,                          )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE WESTERN
                                                     )       DISTRICT OF MICHIGAN
UNKNOWN COOPER, et al.,                              )
                                                     )
       Defendants-Appellees.                         )
                                                     )




       BEFORE: SILER, ROGERS, and WHITE, Circuit Judges.


       PER CURIAM. Toran V. Peterson, a Michigan prisoner proceeding pro se, appeals the

district court’s grant of summary judgment to the defendants in this civil rights action, filed under

42 U.S.C. § 1983, on the ground that Peterson failed to properly exhaust his administrative remedies.

For the reasons set forth below, we reverse in part and remand for further proceedings.

       In 2009, Peterson filed an amended complaint against Michigan Department of Corrections

(MDOC) Director Patricia Caruso, Ionia Maximum Correctional Facility (ICF) Warden Willie

Smith, and several ICF staff members, raising Eighth Amendment and state-law tort claims. Upon

initial screening under the Prison Litigation Reform Act (PLRA), the district court dismissed most

of the complaint for failure to state a claim upon which relief may be granted. See 28 U.S.C.

§ 1915A(a), (b)(1). The district court allowed Peterson to proceed with his Eighth Amendment

claims against Resident Unit Officers Cooper and Patterson, Assistant Deputy Warden Huss, and

Resident Unit Manager Embry, and his state law claims against Cooper and Patterson.
No. 10-2375
Peterson v. Cooper, et al.

       Those claims arise from an incident that occurred on August 22, 2006. Peterson alleges that,

while removing his hand and ankle cuffs, Cooper and Patterson pulled his arms through the food slot

in his cell door, causing him severe pain and injuring his right shoulder, and that Huss and Embry

witnessed the incident but did not intervene. Peterson filed a timely Step I grievance against Cooper

and an unnamed staff member, later identified as Patterson. After the Step I grievance was denied,

Peterson requested the form needed to appeal his grievance to Step II. Records from the prison’s

grievance tracking system indicate that the Step II form was sent to Peterson on September 21, 2006,

but he claims that he never received it. In written messages sent on September 21 and 25, 2006,

Peterson told the grievance coordinator that he did not receive the Step II form. Both times, the

grievance coordinator responded that the form was sent on September 21, 2006. Several months

later, using a Step I form, Peterson sought to appeal the grievance to Step III. His appeal was not

processed because he had not properly completed the first two steps of the grievance procedure.

       Cooper was never served with the complaint. Patterson, Huss, and Embry moved for

summary judgment, arguing that Peterson failed to properly exhaust his claims because he did not

file a Step II grievance and did not file a grievance against Huss and Embry.             Upon the

recommendation of a magistrate judge, the district court granted summary judgment to the

defendants on Peterson’s federal claims, declined to exercise supplemental jurisdiction over

Peterson’s state law claims, and dismissed the action in its entirety. This appeal followed.

       We review de novo a district court’s dismissal of a prisoner’s suit for failure to exhaust

administrative remedies. Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011). “[F]ailure to exhaust

administrative remedies under the PLRA is an affirmative defense that must be established by the

defendants.” Napier v. Laurel Cnty., Ky., 636 F.3d 218, 225 (6th Cir. 2011). Summary judgment

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Peterson v. Cooper, et al.

is appropriate if the defendants “establish the absence of a ‘genuine dispute as to any material fact’

regarding non-exhaustion.” Risher, 639 F.3d at 240 (quoting Fed. R. Civ. P. 56(a)).

       To satisfy the PLRA’s exhaustion requirement, see 42 U.S.C. § 1997e(a), a prisoner must

“complete the administrative review process in accordance with the applicable procedural rules.”

Woodford v. Ngo, 548 U.S. 81, 88 (2006). When a prisoner makes affirmative efforts to comply with

the administrative grievance process but does not succeed, we analyze “whether those ‘efforts to

exhaust were sufficient under the circumstances.’” Risher, 639 F.3d at 240 (quoting Napier, 636

F.3d at 224).

       Under the circumstances, Peterson’s efforts to exhaust were sufficient with regard to Cooper

and Patterson, the two staff members identified in his Step I grievance. Peterson requested a Step II

form on three occasions and informed the grievance coordinator that he did not receive the form that

she sent on September 21, 2006, but she did not send him another copy. The defendants, relying on

Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001), argue that Peterson’s failure to obtain the proper

grievance form does not excuse the exhaustion requirement and that, to defeat their motion for

summary judgment, Peterson was required to show that there was no other source for the form and

that he attempted to file a grievance without the form. This reliance on Jones, which affirmed the

sua sponte dismissal of a prisoner’s complaint for failure to plead exhaustion, is misplaced. Since

that case was decided, the Supreme Court has rejected this circuit’s prior requirement that prisoners

plead exhaustion in their complaints, see Jones v. Bock, 549 U.S. 199, 216 (2007), as well as the

imposition of prerequisites to exhaustion that are not specified in the grievance procedure itself, see

id. at 218-19.




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No. 10-2375
Peterson v. Cooper, et al.

       The steps proposed by the defendants – that Peterson should have requested the form from

another source or filed his appeal without the required form – are not found in, and in fact conflict

with, the prison’s grievance procedure. That procedure provides that, if a prisoner is dissatisfied

with the Step I response, he should request an appeal form “from the Step I Grievance Coordinator

within five business days after receiving the Step I response,” and it requires prisoners to use the

appropriate grievance form. MDOC Policy Directive 03.02.130(DD), (T). As in Risher, we decline

to impose requirements on Peterson for exhaustion purposes beyond those that are required by the

grievance procedure itself. See Risher, 639 F.3d at 240-41. Because Peterson presented evidence

that he made a sufficient effort to exhaust his remedies against Cooper and Patterson, summary

judgment was not proper as to those defendants.

       Summary judgment was proper, however, as to Embry and Huss, who were not named in

Peterson’s Step I grievance or the Step III grievance that he attempted to file. The grievance

procedure requires inmates to include the “[d]ates, times, places and names of all those involved in

the issue being grieved.” MDOC Policy Directive 03.02.130(T). Because Peterson failed to comply

with this requirement, he did not properly exhaust his claims against Embry and Huss. See Jones,

549 U.S. at 218; Sullivan v. Kasajaru, 316 F. App’x 469, 470 (6th Cir. 2009).

       Accordingly, we affirm the district court’s grant of summary judgment to Embry and Huss

but reverse the grant of summary judgment to Cooper and Patterson and remand for further

proceedings.




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