                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0213p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                  Plaintiff-Appellant, -
 HENRY DAVID GRINTER,
                                                          -
                                                          -
                                                          -
                                                             No. 05-6755
            v.
                                                          ,
                                                           >
 CHAD KNIGHT, individually and in his official            -
 capacity as Sergeant, Kentucky State Penitentiary, et -
                                                          -
                                Defendants-Appellees. -
 al.,

                                                          -
                                                        N
                          Appeal from the United States District Court
                        for the Western District of Kentucky at Paducah.
                       No. 04-00224—Thomas B. Russell, District Judge.
                                   Submitted: February 7, 2008
                                Decided and Filed: June 19, 2008
               Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: Henry David Grinter, Eddyville, Kentucky, pro se.
                                       _________________
                                           OPINION
                                       _________________
        JULIA SMITH GIBBONS, Circuit Judge. A Kentucky prisoner proceeding pro se appeals
the district court’s order dismissing his civil rights action brought under 42 U.S.C. §§ 1981 and 1983
for violations of due process, equal protection, the Eighth Amendment, and the Fourteenth
Amendment during a mandatory screening procedure before the complaint was served on the
defendants. For the reasons set forth below, we affirm in part and reverse in part.
                                                  I.
        Henry David Grinter filed a pro se complaint in which he sought relief pursuant to 42 U.S.C.
§§ 1981 and 1983. He names the following persons as defendants in their individual and official
capacities: (1) Sergeant Chad Knight of the Kentucky State Penitentiary, (2) Lieutenant and
Adjustment Committee Chairman William Henderson of the Kentucky State Penitentiary,
(3) Lieutenant and Adjustment Committee Member Jay R. Jones of the Kentucky State Penitentiary,
(4) Case Worker and Adjustment Committee Member Steve Hern of the Kentucky State

                                                  1
No. 05-6755                  Grinter v. Knight, et al.                                                            Page 2


Penitentiary, (5) Warden Glenn Haeberlin of the Kentucky State Penitentiary, (6) Commissioner
John D. Rees of the Kentucky State Penitentiary, (7) Lieutenant Joel Dunlap, head of Internal
Affairs at the Kentucky State Penitentiary, (8) Lieutenant Will Thomas, Internal Affairs employee
at the Kentucky State Penitentiary, and (9) Lieutenant Tim White of the Kentucky State Penitentiary.
Grinter alleges his claims under 42 U.S.C. §§ 1981 and 1983 resulted from violations of his due
process, equal protection, Eighth Amendment, and Fourteenth Amendment rights.
        In his complaint, Grinter alleges that on January 3, 2003, Knight came to his cell to
investigate an incident report that had been filed.1 He alleges that Knight presented the report to him
through a food opening in the door of Grinter’s cell in the segregation unit and that Knight refused
to add witnesses to an incident report in response to his request. After that, Knight closed the slot
and slipped a copy of the report under the door.
        Grinter avers that a short time later, White and another guard dressed in full riot gear
approached his cell without a nurse present. White ordered Grinter to remove his clothes, pinned
him to the wall while2 Grinter’s linens and personal property were removed, and placed him under
four-point restraints. Grinter remained in the restraints, shackled to his bed, for four hours and
sustained cuts and bleeding.
         Grinter alleges that the following day, January 4, 2003, he was issued a disciplinary report
claiming he assaulted defendant Knight. The incident report detailing the January 3 incident, which
was attached to the complaint, stated that Grinter wadded up and threw the incident report. The
report also stated that Grinter struck Knight’s left arm and that Knight had a “small red spot” on his
wrist. According to the incident report, at a hearing several weeks later the adjustment committee
found Grinter guilty. The report states, “Based on facts as stated by Sgt. Knight and [the] medical
report from Nurse Roystor . . . Grinter did strike Sgt. Knight[,] causing a red spot on his left wrist.”
The adjustment committee assessed a non-restorable penalty of sixty days forfeiture of good time
credits.
       Grinter alleges that he was never provided a copy of any medical records, the testimony
Nurse Roystor gave cannot be true because she did not witness the incident, and J. Belt’s written
statement regarding the incident is troubling. Plaintiff appealed to the warden and the state
department of corrections but was unsuccessful.
        The district court dismissed the claims against Rees, Haeberlin, Hern, Jones, Henderson,
Thomas, and Dunlap and the due process claims against Knight and White for failure to state a claim
upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b). It dismissed the claims against
the defendants, state employees, in their official capacities as claims against Kentucky – which was
immune from suit. It dismissed the substantive due process claims based upon the use of the four-
point restraints, the challenge to the procedures used by the adjustment board, and the denial of
good-time credits, finding no liberty interest present. Likewise, it dismissed the claims for failure
to intervene in or overturn the finding of guilt, explaining that the defendants could not be named
on the basis of their supervisory roles and that there was no liberty interest. The district court
dismissed the § 1981 claim against Knight, holding that Knight, as a public official, cannot be sued
under § 1981.
        The district court dismissed Grinter’s § 1983 claims for violation of his equal protection
rights against defendant Knight and the Eighth Amendment excessive force claim against defendant

         1
             The incident report is not specifically identified in the complaint.
         2
           Placing an inmate under four-point restraints involves shackling the inmate’s hands and feet to the four corners
of his bed.
No. 05-6755             Grinter v. Knight, et al.                                                     Page 3


White for failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. At the
direction of this court, the district court granted Grinter permission to file a late notice of appeal.
This appeal followed.
                                                     II.
        We review a district court’s decision to dismiss under 28 U.S.C. §§ 1915(e), 1915A , and
42 U.S.C. § 1997e de novo. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) (overruled
on other grounds by Jones v. Bock, __ U.S. __, 127 S. Ct. 910, 918-19 (2007)). The Prison
Litigation Reform Act (“PLRA”) requires district courts to screen and dismiss complaints that are
frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
                                                     III.
        Section 1983 provides a private right of action for those persons subject to a deprivation of
the “rights, privileges or immunities” guaranteed under the Constitution when that deprivation is
effected by a person operating “under color of any statute, ordinance, regulation, custom, or usage”
of a governmental entity. 42 U.S.C. § 1983. “[T]he violation of a federally protected right” is
necessary for there to be liability against a government official under § 1983. Schroder v. City of
Fort Thomas, 412 F.3d 724, 727 (6th Cir. 2005). In addition, the deprivation must be committed
by a person acting under color of law. Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.
1996).
                                               A. Due Process
        We first turn to Grinter’s due process claims. The district court dismissed Grinter’s
substantive due process claims for failure to state a claim. On appeal, Grinter appears to assert that
the district court erred. Grinter argues that “the defendants did separately and jointly violate[ ] the
substantive due process rights of the plaintiff.”
                                          i.    Official Capacity
        Grinter names the defendants to the § 1983 claim in both their individual and official
capacities. The district court dismissed the claims against the defendants in their official capacities
as barred by the Eleventh Amendment.
         “[A] suit against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989). The Eleventh Amendment bars suits brought in federal court against a state and its agencies
unless the state has waived its sovereign immunity or consented to be sued in federal court. Id. at
66. See also Abick v. Michigan, 803 F.2d 874, 876-77 (6th Cir. 1986). All of the defendants are
state employees and Kentucky has not waived its sovereign immunity. To the extent they are sued
in their official capacities, the § 1983 claim fails.
                                        ii.    Individual Capacity
        Grinter alleges his substantive due process rights were violated when he was placed under
four-point restraints for four hours, when prison adjustment procedures were not followed at his
disciplinary hearing, and when the adjustment committee did not comply with the Kentucky statute
authorizing good-time credits. The district court dismissed each of these claims for failure to state
a claim.
No. 05-6755              Grinter v. Knight, et al.                                                           Page 4


        The Due Process Clause of the Fourteenth Amendment provides that a person may not be
deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. “The
doctrine that governmental deprivations of life, liberty or property are subject to limitations
regardless of the adequacy of the procedures employed has come to be known as substantive due
process.” Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003) (citation omitted). “These
limitations are meant to provide heightened protection against government interference with certain
fundamental rights and liberty interests.” Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007)
(internal quotation marks and citations omitted). “However, identifying a new fundamental right
subject to the protections of substantive due process is often an uphill battle, as the list of
fundamental rights is short.” Id. (internal citations and quotation marks omitted). A fundamental
right must be “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of
ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks
and citation omitted).
        Prisoners have narrower liberty interests than other citizens as “lawful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995)
(internal quotations and citation omitted). We “reach the question of what process is due only if the
inmates establish a constitutionally protected liberty interest.” Wilkinson v. Austin, 545 U.S. 209,
221 (2005). A liberty interest may arise from the Due Process Clause or a state regulation. Sandin,
515 U.S. at 487.
                                          iii.   Four-Point Restraints
        Grinter alleges a substantive due process violation against White because he was in four-
point restraints for four hours and White did not wait for a nurse to arrive before placing Grinter in
the restraints.
        “The Due Process Clause standing alone confers no liberty interest in freedom from state
action taken within the sentence imposed.” Sandin, 515 U.S. at 480 (quotation marks and citation
omitted). “Discipline by prison officials in response to a wide range of misconduct falls within the
expected perimeters of the sentence imposed by a court of law.” Id. at 485. “[T]he Constitution
itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of
confinement.” Wilkinson, 545 U.S. at 221.
        In Sandin, the Supreme Court held that a prisoner’s thirty-day confinement in disciplinary
segregation was “within the range of confinement normally expected for one serving an
indeterminate term of 30 years to life,” Sandin, 515 U.S. at 487, and did not “present a dramatic
departure from the basic conditions of [the inmate’s] sentence,” id. at 485. In contrast, in Wilkinson,
the Supreme Court held that prisoners “have a liberty interest in avoiding assignment to [super-
maximum security prison].” Wilkinson, 545 U.S. at 224. We have held that a prisoner’s designation
as a member of a security threat group did not give rise to a liberty interest. Harbin-Bey v. Rutter,
420 F.3d 571, 577 (6th Cir. 2005). We also held that we would not “find [ ] a liberty interest on the
face of” a substance abuse regulation that banned most visitation for prisoners found guilty of two3
or more substance abuse violations. Bazzetta v. McGinnis, 430 F.3d 795, 802-03 (6th Cir. 2005).
        The use of the four-point restraints and conditions in which they were administered – the
four-hour duration of the period of restraint and the fastening of the restraints without a nurse
present – were expected adverse consequences of confinement. Grinter had been accused of hitting
a prison guard, Knight, at the time he was placed in the restraints. Furthermore, prison officials

         3
          While some of these cases discuss procedural, rather than substantive, due process, they are relevant to the
question of when liberty interests arise for incarcerated prisoners.
No. 05-6755                Grinter v. Knight, et al.                                                               Page 5


entered his cell to conduct an investigation. Given the accusation and the presence of the officials
in Grinter’s cell, as explained above, there was no liberty interest in either freedom from four-point
restraints for four hours or in applying the restraints only in the presence of a nurse because the
restraints were not an “atypical and significant hardship” in prison life. Sandin, 515 U.S. at 484.
        The use of the restraints and the absence of a nurse pose a lesser hardship than the thirty-day
assignment to solitary confinement in Sandin that the Court held did not infringe a liberty interest
and are significantly less burdensome than the assignment to super-maximum security prison which
was found not to infringe any liberty interest in Wilkinson. This situation is more analogous to
banning visitors or designating prisoners as a threat, as in Bazzetta and Harbin-Bey, where we found
there was no liberty interest. Thus, the Due Process Clause does not give rise to a liberty interest
in freedom from four-point restraints or in having a nurse arrive before placing an inmate in the
restraints.
        A state may create a liberty interest through a law or regulation establishing freedom from
restraint which “imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484. Grinter has pointed to no Kentucky law or
regulation that creates an interest in freedom from four-point restraints or in having a nurse present
when such restraints are applied to a prisoner. Therefore, White did not violate the Due Process
Clause by placing Grinter in four-point restraints for four hours or in attaching the restraints without
a nurse present.
                         iv.    Adjustment Procedures in the Disciplinary Hearing
       Grinter alleges a substantive due process violation against Henderson, Jones, and Hern
because they violated policy by failing to provide Grinter with a copy of a medical report, failed to
question Dunlap and Thomas,     failed to make J. Belt available for questioning, and found guilt
without sufficient evidence.4 The district court dismissed each of these claims.
        The allegations of failing to provide a copy of a medical report, failing to question Dunlap
and Thomas, and failing to make J. Belt available for questioning appear to allege that defendants
failed to follow established procedures. Failing to follow proper procedures is insufficient to
establish an infringement of a liberty interest. Olim v. Wakinekona, 461 U.S. 238, 250 (1983)
(“Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to
which the individual has a legitimate claim of entitlement.”). Thus, the substantive due process
violation claim fails because the failure to follow procedure and provide Grinter with a medical
report, question Dunlap and Thomas, and make J. Belt available for questioning does not infringe
a liberty interest.
         Thus, even if Grinter had asserted a procedural due process claim against these defendants,
it also would have failed. See Sweeton v. Brown, 27 F.3d 1162, 1165 (6th Cir. 1994) (holding that
due process does not require that parole authorities follow established procedure). These alleged
procedural violations by Henderson, Jones, and Hern did not violate the Due Process Clause.




         4
           Grinter offered no allegations or argument in support of his claim that there was insufficient evidence to
support a finding of guilt. “[I]t is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.” United States v. Johnson, 440 F.3d 832, 846 (6th Cir.
2006) (citation omitted). Grinter has provided no argument or allegations in support of this argument either in the district
court or before this court and has waived it. See also Rogers v. Howes, 64 F. App’x 450, 455 (6th Cir. 2003) (“The mere
assertion by the petitioner that there was insufficient evidence, without more, cannot support a finding of deprivation
of due process.”) (internal quotation marks and citation omitted).
No. 05-6755           Grinter v. Knight, et al.                                                 Page 6


                v.   Compliance With the Statute Authorizing Good-Time Credits
        Grinter alleges a substantive due process violation because Henderson, Jones, and Hern
violated the Kentucky good-time credit statute, Kentucky Revised Statute § 197.045, denying him
the ability to accumulate sixty days of good-time credits. Grinter had already forfeited 2400 days
of good-time credit and avers he had no more good-time credit to forfeit at the time he was denied
the possibility of accumulating sixty days of good-time credits. The statute provides in part, “The
department may forfeit any good time previously earned by the prisoner or deny the prisoner the
right to earn good time in any amount if during the term of imprisonment, a prisoner commits any
offense or violates the rules of the institution.” Ky. Rev. Stat. § 197.045(1).
        As “the Due Process Clause itself does not create a liberty interest in credit for good
behavior,” Sandin, 515 U.S. at 477, the question is whether the Kentucky statute creates such an
interest. A Kentucky inmate “ possesses no inherent constitutional right . . . to accumulate good
time credits.” Hopewell v. Berry, No. 89-5332, 889 F.2d 1087 (table), 1989 WL 137177, at *1 (6th
Cir. Nov. 15, 1989) (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). Furthermore, “[p]rison
officials clearly have discretion under state law to deny a prisoner future good time.” Id. (citing Ky.
Rev. Stat. § 197.045(1)). As there is no right to accumulate good-time credits, Henderson, Jones,
and Hern did not commit a constitutional violation. Grinter’s substantive due process rights were
not violated because of his inability to accumulate good-time credits.
                           vi.   Supervisory or Administrative Liability
       The district court dismissed the claims against Haeberlin, Rees, Dunlap, and Thomas for
multiple reasons including that Grinter cannot maintain a claim against these defendants in their
supervisory capacities.
        In his complaint, Grinter alleges that Warden Haeberlin and Commissioner Rees violated his
due process rights by acting in a supervisory capacity and allowing their employees to violate
Grinter’s rights and for affirming the finding of guilt. “Because § 1983 liability cannot be imposed
under a theory of respondeat superior, proof of personal involvement is required for a supervisor
to incur personal liability.” Miller v. Calhoun County, 408 F.3d 803, 817 n.3 (6th Cir. 2005). “At
a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.”
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Grinter has not alleged that Haeberlin and
Rees committed any actual acts, nor has he averred that they acquiesced in the conduct of their
employees.
         Grinter also alleges that Internal Affairs Officers Dunlap and Thomas failed to intervene
when Grinter informed them in writing that Knight’s accusations were false. If Grinter is alleging
that they were acting in a supervisory capacity, the claim fails. See Bellamy, 729 F.2d at 421.
Furthermore, if the allegation is brought against Dunlap and Thomas for actions they committed for
failing to intervene, the claim also fails. The “denial of administrative grievances or the failure to
act” by prison officials does not subject supervisors to liability under § 1983. Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999). To the extent Grinter is alleging that he was denied administrative
appeals, he fails to state a claim because “an expectation of receiving process is not, without more,
a liberty interest protected by the Due Process Clause.” Olim, 461 U.S. at 250 n.12. We affirm the
dismissal of the claims against Haeberlin, Rees, Dunlap, and Thomas.
       In conclusion, for the reasons explained above, we affirm the dismissal of Grinter’s due
process claims against all defendants named in these claims.
No. 05-6755                Grinter v. Knight, et al.                                                               Page 7


                                      B.     Equal Protection Under § 1981
        Grinter asserts an equal protection claim against Knight in his official and individual
capacities under § 1981 for race5 discrimination. The district court dismissed this equal protection
claim for failure to state a claim. Grinter alleges in his complaint that “Defendant Knight subjected
[him] to cruel [and] unusual punishment for no reason other than he does not like ‘black inmates.’”
       Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts.” 42 U.S.C.
§ 1981(a). The statute defines “make and enforce contracts” to include the “making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” 42 U.S.C. § 1981(b). The statute elaborates, “The rights
protected by this section are protected against impairment by nongovernmental discrimination and
impairment under color of State law.” 42 U.S.C. § 1981(c).
        Section 1981 is unavailable to Grinter as a vehicle to pursue a damages claim against Knight
in his official capacity. “[T]he express ‘action at law’ provided by § 1983 for the ‘deprivation of
any rights, privileges, or immunities secured by the Constitution and laws,’ provides the exclusive
federal damages remedy for the violation of the rights guaranteed by § 1981” when the claim is
asserted against a state actor in his official capacity. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
735 (1989). Jett continues to control following amendments to § 1981 to add subsection (c) in 1991.
Nothing about the amendments suggests that Congress’s intent was to overrule Jett.6 A panel of this
court assumed without discussion that the amendments did not overrule Jett as applied to state actors
sued in their official capacities. McCrary v. Ohio Dep’t of Human Servs., No. 99-3597, 229 F.3d
1153 (table), 2000 WL 1140750, at *2 (6th Cir. Aug. 8, 2000) (concluding that “Congress intended
that the explicit remedial provisions of § 1983 be controlling in the context of actions seeking
equitable relief against state actors alleging violation of their rights under § 1981”). Other circuits
concur. See, e.g., Pittman v. Oregon Employment Dep’t, 509 F.3d 1065, 1074 (9th Cir. 2007)
(“[W]e hold that § 1981 does not contain a cause of action against states.”); Oden v. Oktibbeha
County, 246 F.3d 458, 463-64 (5th Cir. 2001); Butts v. County of Volusia, 222 F.3d 891, 894 (11th
Cir. 2000); Dennis v. County of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir.1995); Williams v. Little Rock
Mun. Water Works, 21 F.3d 218, 224 (8th Cir. 1994).
        Because Jett remains in force, consequently, § 1983 provides an exclusive remedy for
violations against state actors sued in their official capacities. An official capacity lawsuit against
Knight, a state actor, for constitutional violations, such as race discrimination, cannot be brought
under § 1981.




         5
           In the complaint, in addition to the specific allegation against defendant Knight, Grinter alleges “defendants”
violated his “equal rights” in violation of § 1981. “This court has adopted the requirement that a plaintiff allege with
particularity all material facts to be relied upon when asserting that a governmental official has violated a constitutional
right.” Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002). Such “conclusory,
unsupported statements” are “insufficient to state a claim.” Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.
2001).
         6
           The new language states in relevant part, “The rights protected by this section are protected against impairment
by nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c). This language
creates a right, but not a remedy, and therefore shows no Congressional intent to overrule Jett. See Butts v. County of
Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (“[T]he section creates a right that private or state actors may violate but
does not itself create a remedy for that violation.”).
No. 05-6755               Grinter v. Knight, et al.                                                              Page 8


        Furthermore, Grinter fails to state a claim against Knight in his individual capacity.7 Grinter
alleges Knight subjected him to cruel and unusual punishment because of his race. Grinter, who is
pro se, is held to a less stringent pleading standard than a party with an attorney. Haines v. Kerner,
404 U.S. 519, 520 (1972). Despite this, “more than bare assertions of legal conclusions is ordinarily
required to satisfy federal notice pleading requirements.” Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.2d 434, 436 (6th Cir. 1988). See also Kamppi v. Ghee, 208 F.3d 213 (table), 2000 WL
303018, at *1 (6th Cir. May 14, 2000) (“Thus, the less stringent standard for pro se plaintiffs does
not compel the courts to conjure up unpleaded facts to support conclusory allegations.”) As Grinter
pleads a legal conclusion without surrounding facts to support the conclusion stated in this claim,
he fails to state a claim. We affirm the dismissal of the § 1981 claim.
                             C.     Failure to Exhaust Administrative Remedies
        The district court dismissed Grinter’s Eighth Amendment excessive force and equal
protection race discrimination claims for failure to exhaust administrative remedies. On appeal,
Grinter argues that he had exhausted his administrative remedies as to all claims at the time he filed
the complaint.
       Prisoners must exhaust their administrative remedies before challenging prison conditions.
42 U.S.C. § 1997e. “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 127 S. Ct. at 918-19. Failure to
exhaust is an affirmative defense under the PLRA, and [ ] inmates are not required to specially plead
or demonstrate exhaustion in their complaints.” Id. at 921.8, 9
         Grinter alleges that defendant White used excessive force in applying the four-point
restraints in violation of the Eighth Amendment. He also alleges that defendant Knight
discriminated against him because of his race in violation of his equal protection rights. The district
court summarily dismissed both of these claims because of Grinter’s failure to plead or demonstrate
that he had exhausted his administrative remedies. While the district court followed our precedent
at the time it ruled in dismissing these claims at the screening stage on exhaustion grounds, Jones
overruled these cases and changed the law. Under Jones, because exhaustion is an affirmative
defense, a claim may not be dismissed at the screening stage for failure to plead or attach exhibits
with proof of exhaustion. We reverse the dismissal of these claims for failure to exhaust
administrative remedies and remand the case for further proceedings in light of Jones. See, e.g.,
Dotson v. Corr. Med. Servs., 2007 WL 3230909, at *2 (6th Cir. Nov. 1, 2007) (remanding case to
the district court with instructions to evaluate claims prematurely dismissed under Jones and listing
cases remanding pursuant to Jones).



         7
          We may affirm a district court for any reason, including a reason not considered by the district court. Dismas
Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 677 (6th Cir. 2005).
         8
           Jones v. Bock overruled Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir. 1998) (holding that the prisoner
has the burden of demonstrating he has exhausted his administrative remedies in his complaint), Burton v. Jones, 321
F.3d 569, 574 (6th Cir. 2003) (holding that the prisoner must exhaust his administrative remedies as to each defendant
later sued), and Jones Bey v. Johnson, 407 F.3d 801, 807 (6th Cir. 2005) (holding that the PLRA requires “total
exhaustion” where an entire action should be dismissed if one claim is not properly exhausted). __ U.S. __, 127 S. Ct.
at 918-26.
         9
            Furthermore, “exhaustion is not per se inadequate simply because an individual later sued was not named in
the grievances.” Id. at 923. Finally, if a complaint contains claims that are exhausted and claims that are not exhausted,
the district court should proceed with the exhausted claims while dismissing the claims that are not exhausted and should
not dismiss the complaint in its entirety. Id. at 923-26.
No. 05-6755            Grinter v. Knight, et al.                                               Page 9


                                                   IV.
         For the foregoing reasons, we affirm in part and reverse in part the judgment of the district
court.
