                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0228n.06

                                           No. 09-1472

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
PHILLIP DEMETRIUS REYNOLDS-BEY,                       )                          Apr 13, 2011
                                                      )                    LEONARD GREEN, Clerk
       Plaintiff - Appellant,                         )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR THE
                                                      )   WESTERN DISTRICT OF MICHIGAN
SUSANNE E. HARRIS-SPICER, et al,                      )
                                                      )
      Defendants - Appellees.                         )
______________________________                        )


Before: DAUGHTREY, CLAY, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.                Pro se Plaintiff-Appellant Phillip Demetrius

Reynolds-Bey challenges the district court’s grant of summary judgment to Defendants, all

employees of the Michigan Department of Corrections (MDOC). Reynolds-Bey alleged that

Defendants retaliated against him for his First Amendment-protected activity while he was a state

prisoner housed at MDOC facilities. The district court granted summary judgment to all Defendants

except Kingsbury on the basis that Reynolds-Bey failed to exhaust administrative remedies and

determined that one defendant was additionally entitled to absolute judicial immunity. The district

court granted summary judgment to Kingsbury on the basis that Reynolds-Bey failed to provide

adequate support of a cognizable retaliation claim. We affirm in part and reverse and remand in part.

                                                 I.
No. 09-1472
Reynolds-Bey v. Harris-Spicer

       At the times relevant to this suit, Reynolds-Bey was a state prisoner in Michigan housed in

several state correctional facilities operated by the MDOC. On December 22, 2005, he filed a pro

se complaint pursuant to 42 U.S.C. § 1983. The district court later granted him leave to file an

amended complaint. A description of the facts underlying his complaint follows.

       A. ALLEGED RETALIATION BY KINGSBURY

       In May 2004, Reynolds-Bey was transferred from the Chippewa Correctional Facility in

Kincheloe, Michigan, to the Boyer Road Correctional Facility in Carson City, Michigan. Reynolds-

Bey’s amended complaint alleges that in May 2004, while exiting the prison dining hall, he was

stopped by Defendant Kingsbury, a guard at the Boyer Road Facility, who recognized Reynolds-Bey

from the Chippewa Facility where Kingsbury had previously worked. Reynolds-Bey further alleges

that on June 21, 2004, Kingsbury stopped him, referred to a 2001 order of a magistrate judge in the

Western District of Michigan in a case filed by Reynolds-Bey that mentioned Kingsbury, and then

told Reynolds-Bey that “Niggers and litigants like you will always stay on my list and you can write

that in any grievance or tell the court that.” Kingsbury also subjected Reynolds-Bey to what

Reynolds-Bey termed a “harassing body search.”

       By way of background, Reynolds-Bey did file a lawsuit while he was an inmate at the

Chippewa Correctional Facility. See Phillip Demetrius Reynolds v. N. Smith, et al., No. 2:01-cv-43

(W.D. Mich. filed Mar. 16, 2001). Reynolds-Bey named nine defendants in that suit; Kingsbury was

not one of them.     The only mention of Kingsbury is on the second page of a report and

recommendation filed by a magistrate judge, which discusses Reynolds-Bey’s allegation that on

January 17, 2001, N. Smith called Kingsbury via walkie-talkie, and that “Smith was later observed

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Reynolds-Bey v. Harris-Spicer

with Botos and Kingsberry [sic] in possession of the plaintiff’s legal transcripts in the counselor’s

office and placing them in the Guard Desk.” (Id. at 2.) On November 8, 2001 the district judge

dismissed all but four defendants. The district court dismissed the remaining defendants on August

26, 2003. This Court affirmed the district court’s judgment on April 8, 2004. See Reynolds v. Smith,

No. 03-2201 (6th Cir. Apr. 8, 2004).

       On May 17, 2004, prior to the incident involving the racial epithet, Reynolds-Bey filed a

grievance with prison officials “ABOUT BEING AT SAME FACILITY AS STAFF MEMBER

WHOM IS PART OF LAWSUIT.” (Grievance No. OTF-04-05-0275-24A.) The grievance

requested that Reynolds-Bey be transferred to another facility because he was “fearful” of Kingsbury.

His grievance was denied.

       On June 21, 2004, Reynolds-Bey filed a new grievance regarding threats made by Kingsbury.

(See Grievance No. OTF-04-06-0361-18B.) Reynolds-Bey alleged that Kingsbury had yelled at him,

forced him to empty his pockets, and made an “implied threat.” In relevant part, the grievance reads

as follows:

       This Citizen on June 21, 2004, while proceeding to chow, once he entered into the
       chow hall – Guard KINGSBERRY [sic] confronted this American by yelling in this
       Citizen ear from less than 2 feet from behind. . . . Subsequently, when Mr. Reynolds
       turned around, – KINGSBERRY [sic] was speaking with an Unknown John Doe
       Guard and commenting: “Reynolds was the one.” When Mr. Reynolds was leaving
       from the right side of the chow hall, KINGSBERRY [sic] existed [sic] from the
       leftside [sic] and intercepted Reynolds in the front area of chow hall. As a result,
       KINGSBERRY [sic] was successful in intercepting Reynolds and ordered him to
       come to him and empty his pockets. Mr. Reynolds asked prisoner SANDER’S [sic]
       whom was standing beside him to observe what happened because Reynolds told Mr.
       Sanders, that KINGSBERRY [sic] was one of the GUARDS at [Chippewa
       Correctional Facility] involved in litigation filed in federal court, along with a
       variety of prison employees in 2001.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

        When this Citizen proceeded to the front of the chow hall side by the blue mail box,
        KINGSBERRY [sic] and a John Doe Guard [were] there. Reynolds emptied his
        pockets for a shakedown which KINGSBERRY [sic] ordered but contrary to a
        shakedown taking place. C/O KINGSBERRY [sic] proceeded to question his name
        and whether he understood. This was strange but Mr. Reynolds understood the
        implied threat, along with Mr. Sander’s [sic] witnessing the same. Furthermore,
        when KINGSBERRY [sic] grabbed my wallet off the mail box, he removed my I’D
        and stated ‘O[’] and made hand jesters [sic] in front of me. He said something to the
        other Guard and I was ordered from the area. When I walked away, KINGSBERRY
        [sic] was speaking in quiet tone with this other guard about Reynolds.

(Id.)1 According to the amended complaint, this is the incident during which Kingsbury used the

racial slur. This grievance was also denied.

        B. COMPLAINTS ABOUT HEARING OFFICER HARRIS-SPICER

        On July 1, 2004, Reynolds-Bey was written up in a Major Misconduct Report for possessing

a legal document that could be used to “deceive the [prison] into believing that he had a legitimate

court date when he did not.” (Major Misconduct Hr’g Report, Pro Se App., App. 2.) In the Hearing

Report finding him guilty of the charge, the hearing officer, Defendant Susanne Harris-Spicer, wrote

that a prison staff member had told her “that the Inspector told her that he felt the prisoner was trying

to escape.” (Id.) According to Reynolds-Bey, Harris-Spicer also made oral comments during the

hearing alleging that Reynolds-Bey’s mother and brothers “intended to break into the prison and

assist in Plaintiff’s escape” and telling Reynolds-Bey to “stop writing federal judges and the

Governor because it was intimidating local prison officials and that there was no purpose for a


        1
         Reynolds-Bey also addressed this incident in his Step III appeal of the first grievance,
writing that on “June 21, 2004 time 6:00-6:05 p.m., G[u]ard KINGSBURY stopped twice and
threatened this American Citizen. A separate grievance is being filed but I wanted to include this
in the record . . . . Mr. Reynolds seeks to [be] placed in protection immediately.” (Grievance No.
OTF-04-05-0275-24A.)

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

prisoner to complain about his living conditions.” (Am. Compl. ¶¶ 31-32.) Reynolds-Bey

complained about Harris-Spicer’s comments to prison officials, who investigated and informed him

that they could “find no evidence . . . that either you or your family members are engaged in any

escape conspiracy.” (Mem. from Kurt Jones, Warden, to Phillip Reynolds (Sept. 7, 2004), Pro Se

App., App. 3.) In his amended complaint, Reynolds-Bey alleged that Harris-Spicer and other prison

employees “deliberately falsified Plaintiff’s involvement in a crime to escape from the prison” in

retaliation for Reynolds-Bey’s First Amendment-protected activity of “engaging in verbal and

written communications with public officials.” (Am. Compl. ¶ 59.)

        C. ADDITIONAL GRIEVANCES FILED BY REYNOLDS-BEY AND MAJOR
        MISCONDUCT REPORTS ISSUED TO REYNOLDS-BEY

        As described in detail in the magistrate judge’s report and recommendation (R&R),

Reynolds-Bey filed six grievances in 2005 regarding a series of events that he alleges constituted

retaliation for filing grievances and otherwise petitioning prison officials and others.2 Each of the

six grievances was untimely filed and rejected by prison officials. The magistrate judge found that

the claims arising out of these grievances were therefore not exhausted and, thus, not properly before

the district court.




        2
         The relevant grievances comprise:
        (1) OTF-05-02-00090-28E (filed Feb. 8, 2005);
        (2) OTF 05-02-00091-28E (filed Feb. 8, 2005);
        (3) OTF-05-02-00092-28E (filed Feb. 8, 2005);
        (4) OTF 05-02-00093-28E (filed Feb. 8, 2005);
        (5) OTF 05-03-00153-28E (filed Mar. 3, 2005); and
        (6) OTF 05-06-00397-28E (filed June 27, 2005).

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

        In 2004 and 2005, subsequent to the hearing in which Harris-Spicer referenced Reynolds-

Bey’s supposed escape plot, prison officials filed at least six additional major misconduct reports

against Reynolds-Bey:

        1) Insolence, September 2, 2004, written by J. Dunigan on December 1, 2004. (Pro Se App.,

App. 12.) Reynolds-Bey found not guilty by Hearing Officer Gary Kuiper on December 16, 2004.

(Id. at App. 13.)

        2) Unauthorized Occupation of Cell or Room, September 14, 2004, written by J. Dunigan.

(Id. at App. 7.) Reynolds-Bey found not guilty by Hearing Officer Harris-Spicer on October 5, 2004.

(Id. at App. 8.)

        3) Disobeying a Direct Order, December 1, 2004, written by Beecher. (Id. at App. 14.)

Reynolds-Bey avers that no hearing was conducted on this charge.

        4) Disobeying a Direct Order, July 22, 2005, written by C. White. (Id. at App. 15.)

Reynolds-Bey found not guilty by Hearing Officer Baerwalde on July 29, 2005. (Id. at App. 16.)

        5) Gambling/Possession of Gambling Paraphenalia [sic], October 24, 2005, written by M.

Clark. (Id. at App. 17.) Major misconduct report dismissed by Hearing Officer Baerwalde on

November 8, 2005. (Id. at App. 18.)

        6) Disobeying a Direct Order, December 13, 2005, written by Wingard. (Id. at App. 20.)

Reynolds-Bey found not guilty by Hearing Officer Baerwalde on December 21, 2005. (Id. at App.

21.)

        Reynolds-Bey’s amended complaint refers to three of these major misconduct reports. His

fifth cause of action in the amended complaint alleges, inter alia, that he “suffered adverse action

                                                 6
No. 09-1472
Reynolds-Bey v. Harris-Spicer

by defendant Dunigan when he manufactured a prison misconduct on September 14, 2004, in

response to Plaintiff complaining about staff corruption.” (Am. Compl. ¶ 65(d).) His sixth cause

of action alleges that “Plaintiff suffered adverse action by Defendant[s] DUNIGAN, BEECHER,

MALLORY, KILLOUGH, SMITH, GRAVELLE, BELONGA, BOYNTON and JONES when they

issued Plaintiff two major misconduct (December 2004) for Plaintiff and his mother’s litigation

activities in a federal § 1983 civil rights lawsuit.” (Id. ¶ 67(b).) This allegation appears to refer to

the report for insolence on September 2, 2004, which was written on December 1, 2004, and the

December 1, 2004, report for disobeying a direct order. The amended complaint does not mention

the three misconduct reports from 2005.

        Reynolds-Bey’s amended complaint named sixteen defendants, all MDOC employees. On

April 8, 2008, the magistrate judge issued a R&R calling for dismissal of all claims against all

defendants except Kingsbury on the grounds that 1) the claims were not exhausted as required by

the Prison Litigation Reform Act; 2) Defendant Harris-Spicer was entitled to absolute judicial

immunity; and 3) Count 2 of Reynolds-Bey’s amended complaint, concerning the guilty finding for

the July 21, 2004, misconduct report for possession of a forged document, is “noncognizable under

§ 1983 because a ruling on the retaliation claims would, if established, necessarily imply the

invalidity of his disciplinary conviction” in violation of Edwards v. Balisok, 520 U.S. 641, 648

(1997), and Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The district court adopted the R&R

on September 30, 2008, and granted the motions to dismiss filed by all defendants except Kingsbury.

        On October 28, 2008, the magistrate judge recommended that the district court grant

summary judgment to Kingsbury on the remaining First Amendment retaliation claim. The district

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

court adopted the recommendation and granted summary judgment in favor of Kingsbury on March

6, 2009. Reynolds-Bey filed a timely pro se appeal. The Michigan Department of Attorney General,

acting as counsel for Defendants, opted to rely on its filings below instead of submitting a brief on

appeal.


                                                    II

          A. STANDARD OF REVIEW

          This Court reviews a district court’s grant of summary judgment de novo.3 Binay v.

Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010). “Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

‘show that there is no genuine issue as to any material fact and that the movant is entitled to a

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). This Court must draw all

reasonable inferences and view all evidence in favor of the non-moving party. Id.; Wuliger v.

Manufacturers Life Ins. Co. (USA), 567 F.3d 787, 792 (6th Cir. 2009).

          Because Reynolds-Bey is a pro se litigant, we liberally construe his filings. Spotts v. United

States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (“Pro

se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings.”); see also



          3
        Defendants filed a motion to dismiss for failure to exhaust administrative remedies on May
29, 2007. Because they submitted exhibits with that motion and because Reynolds-Bey attached
evidentiary material to his amended complaint, the district court converted the Rule 12(b)(6) motion
to dismiss into a Rule 56 motion for summary judgment. Thus, when the district court granted
Defendants’ motions to dismiss for Reynolds-Bey’s failure to exhaust, it was actually granting
summary judgment.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that the Court holds pleadings of pro se litigants

to “less stringent standards than formal pleadings drafted by lawyers”).

        B. ABSOLUTE IMMUNITY

        On appeal, Reynolds-Bey challenges the district court’s decision that Hearing Officer Harris-

Spicer is entitled to absolute judicial immunity by alleging that Harris-Spicer was acting without

jurisdiction when she made the allegation that he was “trying to escape.” We disagree.

        In Shelly v. Johnson, 849 F.2d 228, 229-30 (6th Cir. 1988) (per curiam), this Court held that

Michigan prison hearing officers are entitled to “absolute immunity from liability with respect to

their judicial acts.” The doctrine of judicial immunity protects judicial officers from suits seeking

money damages and applies even in the face of “allegations of bad faith or malice.” Mireles v.

Waco, 502 U.S. 9, 11 (1991) (per curiam).               Judicial immunity is overcome in only two

circumstances: “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not

taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in

nature, taken in the complete absence of all jurisdiction.” Id. at 11-12 (citations omitted).

        Here, Harris-Spicer was clearly acting in her “judicial” capacity–presiding over a hearing and

authoring a hearing report. The Supreme Court has held that “whether an act by a judge is a

‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed

by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial

capacity.” Id. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978) (alteration in original)).

Although Reynolds-Bey alleges that prison officials believed Harris-Spicer was “acting on her own”



                                                    9
No. 09-1472
Reynolds-Bey v. Harris-Spicer

when she alleged that Reynolds-Bey was trying to escape,4 the record indicates that Harris-Spicer

was acting in her official role as a hearing officer, and was well within her jurisdiction to make a

determination on the Major Misconduct Report and to include in her hearing report any allegations

or factual findings she thought relevant. See MDOC Policy Directive 03.03.105, ¶¶ Z, BB, DD

(effect i v e           d at e     Au g.        1 6 ,     2 0 1 0),        a va i l a b l e      at

http://www.michigan.gov/documents/corrections/0303105_330455_7.pdf (discussing jurisdiction

and role of hearing officer).

       Even if Harris-Spicer’s allegation was made in bad faith, she is still entitled to absolute

immunity. See Mireles, 502 U.S. at 11; Pierson v. Ray, 386 U.S. 547, 554 (1967) (“This immunity

applies even when the judge is accused of acting maliciously and corruptly . . . .”). The lack-of-

jurisdiction exception to judicial immunity is narrow, and Reynolds-Bey fails to demonstrate that

Harris-Spicer acted in the “clear absence of all jurisdiction” here. Stump, 435 U.S. at 357; see also

id. at 356 (“[T]he scope of the judge’s jurisdiction must be construed broadly where the issue is the

immunity of the judge.”). Therefore, Harris-Spicer is entitled to absolute immunity from suit.

Moreover, the claim against Harris-Spicer is not properly exhausted because the grievance

concerning her actions was untimely.

       The district court granted summary judgment to Harris-Spicer on the alternative grounds that

Reynolds-Bey’s claim against her was unexhausted, and that she is entitled to absolute immunity.



       4
         In fact, prison officials stated to Reynolds-Bey that they believed that “every possibility
exists that this was a misunderstanding on the part of the Hearings Officer when she typed this in
your report.” (Mem. from Kurt Jones, Warden, to Phillip Reynolds (Sept. 30, 2004), R. 1-2, at 4.)

                                                 10
No. 09-1472
Reynolds-Bey v. Harris-Spicer

The magistrate judge and the district court addressed the latter ground for the holding sua sponte:

Absolute immunity was not argued in Defendants’ motion for summary judgment. A district court

may, in the exercise of its discretion, grant summary judgment sua sponte in “certain limited

circumstances,” so long as the losing party is “afforded notice and reasonable opportunity to respond

to all the issues to be considered by the court.” Shelby Cnty. Health Care Corp. v. S. Council of

Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir. 2000) (internal quotation

marks omitted). Here, the magistrate judge did not provide Reynolds-Bey with notice, and

Reynolds-Bey objected on that basis in the district court, while also including a cursory argument

on the merits.

        We need not consider the propriety of the grant of summary judgment, however, because

Harris-Spicer is nonetheless entitled to absolute immunity on the merits. We therefore dismiss the

claims against Harris-Spicer pursuant to 28 U.S.C. § 1915(e)(2)(B). Section 1915(e)(2) provides that

in civil actions brought by prisoners, the court “shall dismiss the case at any time if the court

determines that . . . the action or appeal-- (i) is frivolous . . . ; (ii) fails to state a claim on which relief

may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”

28 U.S.C. § 1915(e)(2) & (e)(2)(B) (emphasis added). Harris-Spicer is entitled to absolute

immunity, and thus Reynolds-Bey”s claim against her must be dismissed. See Carlton v. Baird, 72

F. App'x 367, 368 (6th Cir. 2003) (“[W]e conclude that the district court was required to dismiss this

complaint because it sought monetary relief from a defendant who is entitled to absolute immunity.

28 U.S.C. §§ 1915(e)(2)(B)(iii) . . . . Judges are absolutely immune from suit for monetary damages



                                                       11
No. 09-1472
Reynolds-Bey v. Harris-Spicer

. . . . and the absolute immunity of the defendant therefore compelled dismissal.” (some internal

citations omitted)).

       C. PLRA EXHAUSTION

       Pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, prisoners seeking

to bring § 1983 actions with respect to prison conditions must first exhaust available administrative

remedies. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007). To satisfy this exhaustion

requirement, “prisoners must ‘complete the administrative review process in accordance with the

applicable procedural rules,’ – rules that are defined not by the PLRA, but by the prison grievance

process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)).       The

PLRA requires “proper exhaustion,” meaning that plaintiffs must timely pursue available

administrative remedies. Woodford, 548 U.S. at 93. Failure to file an administrative grievance

within proper time limits precludes proper exhaustion and thus bars the claim in federal court. Id.

The exhaustion requirement “applies to all prisoners seeking redress for prison circumstances or

occurrences,” whether for broad prison conditions suits or for individual allegations of abuse. Porter

v. Nussle, 534 U.S. 516, 520 (2002). When a prisoner’s complaint contains a combination of

exhausted and unexhausted claims, courts are to dismiss the unexhausted claims but retain and

address the exhausted claims. Jones, 549 U.S. at 220-24.

       MDOC Policy Directive 03.02.130 (effective date Dec. 19, 2003) provides the applicable

grievance procedures for MDOC prisoners.5 The Policy Directive details four steps that inmates


       5
        Although Policy Directive 03.02.130 has subsequently been amended, the version of the
policy adopted in December 2003 applied at all times relevant to Reynolds-Bey’s claims.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

must undertake in order to exhaust their complaints properly. First, a grievant must attempt to

resolve the issue orally within two business days of becoming aware of the grievable issue, unless

prevented by circumstances beyond his or her control. Policy Directive 03.02.130, ¶ R. Second, the

grievant must file a “Step I grievance” within five days of the attempted oral resolution, which is

assigned to an appropriate respondent within the MDOC system. Id. ¶¶ R, X. If the prisoner is not

satisfied with the response to the Step I grievance, he or she may appeal to Step II by requesting an

appeal form within five days after receiving the Step I response and then must file the appeal within

five days of receiving the form. Id. ¶ DD. The Step II respondent is designated by policy (e.g., the

warden of the facility for many grievances). Id. ¶ FF. If the prisoner is dissatisfied with the response

at Step II, he or she may file a Step III grievance within ten days after receiving the Step II response.

Id. ¶ HH. The Step III respondent is the Director of the MDOC Prisoner Affairs Section. Id. ¶ II.

Grievances alleging “racial or ethnic discrimination or staff brutality or corruption” may be filed

directly to Step III. Id. ¶ S.

        Policy Directive 03.02.130 provides instructions regarding the contents of prisoner

grievances. It directs that “[i]nformation provided shall be limited to the facts involving the issue

being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those

involved in the issue being grieved are to be included.” Id. ¶ T. Policy Directive 03.02.130 also

provides a list of “non-grievable issues,” including “[d]ecisions made in hearings conducted by

hearing officers.” Id. ¶ F(1). Prisoners may seek rehearing of such decisions, but they may not file

independent grievances regarding hearing outcomes. See Policy Directive 03.03.105, ¶ BBB

(effect i v e            d at e      A u g.        1 6 ,     2 0 1 0),        a va i l a b l e        at

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

http://www.michigan.gov/documents/corrections/0303105_330455_7.pdf (describing procedures

for requesting rehearing of results of major misconduct hearing).6

       Reynolds-Bey argues that prison officials filed a series of baseless misconduct reports against

him in retaliation for his First Amendment-protected activity, but that he was not permitted to appeal

or file grievances concerning the misconduct hearings after each charge resulted in a not guilty

finding or other dismissal. He thus argues that his grievances should be deemed properly exhausted.

We agree with the district court that his argument that he should have been able to appeal the “not

guilty” findings is without merit because once Reynolds-Bey “won, . . . there was nothing for him

to appeal.” (Order 3, R. 101.) It is also correct that the outcomes of misconduct hearings are non-

grievable under MDOC policy. However, Reynolds-Bey does not actually challenge the outcomes

of the major-misconduct hearings; he was found not guilty or charges were dismissed at each of the

hearings at issue here. Rather, he argues that the filing of meritless misconduct reports by prison

staff constituted unlawful retaliation. As distinct from the outcomes of misconduct hearings, the

filing of retaliatory misconduct reports is grievable under MDOC Policy Directive 03.02.130. Three

of Reynolds-Bey’s grievances complained about retaliatory filing of major misconduct charges:

Grievances OTF 05-02-0092-28E and OTF 05-02-0093-28E (both filed on Feb. 8, 2005) alleged that

major misconduct reports issued on September 14, 2004, and December 1, 2004, were retaliatory.

Both grievances were deemed untimely filed and rejected on that basis at each step of the grievance




       6
        The version of Policy Directive 03.03.105 in effect at the times relevant to this suit was not
included in the parties submissions to the district court or to this Court on appeal.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

review process. They are therefore not properly exhausted and may not form the basis of claims in

federal court.

       Reynolds-Bey’s grievance OTF-05-03-00153-28E, filed on March 3, 2005, alleges that the

December 1, 2004, major misconduct report for insolence was issued as retaliation for “the filing of

prior lawsuits . . . against prison employees in federal court, grievance writing, family activity in

protesting prison officials activities against them, and ect. [sic].” A hearing officer found Reynolds-

Bey not guilty of this charge on December 16, 2005 (more than two months prior to when he filed

the grievance). The grievance was rejected as untimely at Step I on the basis that it was filed six

months late.7 At Step II, it was again rejected, this time because the respondent interpreted the

grievance as challenging the outcome of the misconduct hearing, which is non-grievable.8 The Step

III response referenced the Step I and II responses but then denied the grievance on the substantive

ground that

       Dismissals/not guilty findings in major misconduct hearings are not considered proof
       of misconduct on the part of the author of the misconduct or on the part of any other
       staff. The grievant has presented insufficient evidence from which to conclude that
       staff acted improperly or that their actions were retaliatory or punitive in nature.




       7
         The misconduct report at issue here was issued on December 1, 2004, but concerns an
incident alleged to have taken place on September 2, 2004. The grievance was therefore actually
filed three months late, counting from the issuance of the misconduct report, not six months late as
stated in the Step I response. Three months is still far outside the applicable time limit, however.
       8
       This appears to be an improper reason for rejecting the grievance. The grievance
complained about the retaliatory filing of a major misconduct report, not about the outcome of the
misconduct hearing. Only the latter is non-grievable under Policy Directive 03.02.130.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

(R. 32-4, at 6.) The magistrate judge’s R&R found the claim unexhausted due to untimeliness.

Reynolds-Bey does not specifically argue that this finding should be disturbed. He does, however,

argue that the district court erred in dismissing his suit on exhaustion grounds. Based on our

convention of liberally construing the filings of pro se plaintiffs, Spotts v. United States, 429 F.3d

248, 250 (6th Cir. 2005), and in light of developments in the law of this circuit subsequent to

Reynolds-Bey’s filing of his appellate brief, see Reed-Bey v. Pramstaller, 603 F.3d 322 (6th Cir.

2010), we will address the question whether Grievance OTF 05-03-00153-28E is properly deemed

unexhausted given the Step III respondent’s decision to dismiss the grievance on the merits rather

than on procedural grounds.

       After the district court issued its order granting summary judgment (and after Reynolds-Bey

filed his appellate brief), this Court decided Reed-Bey v. Pramstaller, 603 F.3d 322 (6th Cir. 2010).

There, the court held that “[w]hen 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.” Id. at 325. Thus, “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.” Id. This rule

is based substantially on the similarity of the PLRA exhaustion regime and the procedural default

doctrine in habeas cases.9 Id.


       9
       In the habeas context, a petitioner procedurally defaults if
      (1) the petitioner fails to comply with a state procedural rule; (2) the state courts
      enforce the rule; (3) the state procedural rule is an adequate and independent state
      ground for denying review of a federal constitutional claim; and (4) the petitioner
      cannot show cause and prejudice excusing the default.
Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc).

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

        Here, the grievance was rejected under the procedural rule on timely filing at the first step,

improperly rejected under another procedural rule at the second step, and rejected on the merits at

the third step. We determine whether this constitutes proper exhaustion by reference to habeas

doctrine. See id. at 325. Reed-Bey states that in habeas cases, “‘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.” Id. (quoting Harris v. Reed, 489 U.S. 255, 263

(1989)). Here, the Step III response (the equivalent of the last state court in habeas) did not “clearly

and expressly” state that Reynolds-Bey’s fifth grievance was being rejected on procedural grounds.

Rather, it mentioned the procedural bases for the Step I and II decisions and then rested its

determination on the substantive ground that “[d]ismissals/not guilty findings in major misconduct

hearings are not considered proof of misconduct on the part of the author of the misconduct or on

the part of any other staff.” (R. 32-4 at 6.) Therefore, we find that Grievance OTF 05-03-00153-28E

was exhausted for purposes of the PLRA.

        The substance of Reynolds-Bey’s complaint in Grievance 05-03-00153-28E raises a First

Amendment retaliation claim that should be addressed in the first instance by the district court. We

therefore remand for consideration of Reynolds-Bey’s claim that the December 1, 2004, major

misconduct report was issued in retaliation for his First Amendment-protected activity of filing

grievances and other petitions. We otherwise affirm the district court’s determination that Reynolds-

Bey’s other relevant grievances were not properly exhausted, and that the state procedural rule on

timely filing was enforced by the Step III respondent as to each of them.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

        D. RETALIATORY HARASSMENT BY KINGSBURY

        Reynolds-Bey alleges that Kingsbury subjected him to a search, used racial slurs, and made

implicit threats in retaliation for Reynolds-Bey’s previous filing of a § 1983 lawsuit. Reynolds-Bey’s

complaint thus raises a First Amendment retaliation claim.

        A retaliation claim essentially entails three elements: (1) the plaintiff engaged in
        protected conduct; (2) an adverse action was taken against the plaintiff that would
        deter a person of ordinary firmness from continuing to engage in that conduct; and
        (3) there is a causal connection between elements one and two-that is, the adverse
        action was motivated at least in part by the plaintiff's protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). It is undisputed that Reynolds-Bey’s filing

of his original suit in Reynolds v. N. Smith, 2:01-cv-43 (W.D. Mich. filed Mar. 16, 2001), constitutes

protected conduct. The magistrate judge found that Reynolds-Bey’s claim failed on the second and

third elements of the retaliation claim.

        On the second element, “the test is, if a reasonable trier of fact could conclude that a

retaliatory act would deter a person from exercising his rights, then the act may not be dismissed at

the summary judgment stage.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005). The

magistrate judge concluded that being subjected to a single search while exiting the dining hall

would not “deter a person of ordinary firmness from engaging in protected conduct.” (R&R 6, R.

104.)

        Examples of adverse actions that this Court has held sufficient to meet the “person of

ordinary firmness” standard include initiating a retaliatory transfer to another prison when it will

result in foreseeable negative consequences to the prisoner, Siggers-El, 412 F.3d at 701-02,

threatening to impose disciplinary sanctions, Scott v. Churchill, 377 F.3d 565, 571-72 (6th Cir.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

2004), issuing major misconduct reports that could result in loss of disciplinary credits, Thomas v.

Eby, 481 F.3d 434, 441 (6th Cir. 2007), and threatening the use of physical force, Thaddeus-X, 175

F.3d at 398. On the other hand, this Court has opined that “prisoners are expected to endure more

than the average citizen,” Siggers-El, 412 F.3d at 701, and so not every objectionable act directed

at a prisoner constitutes adverse action sufficient to deter a person of ordinary firmness from

engaging in protected activities. Thus, “the single search of a prison cubicle would not deter a

person of ‘ordinary firmness’ from pursuing constitutional grievances.” Tate v. Campbell, 85 F.

App’x 413, 417 (6th Cir. 2003) (unpublished). Other routine inconveniences of prison life also do

not constitute adverse action. See, e.g., Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 358 (6th Cir.

2006) (unpublished) (transfer of inmate to another prison in the absence of “foreseeable

consequences to the transfer that would inhibit the prisoner's ability to access the courts” is not

adverse action); Harbin-Bey v. Rutter, 420 F.3d 571, 579-80 (6th Cir. 2005) (defendant’s filing of

“Notices of Intent to Conduct an Administrative Hearing,” which did not result in loss of inmate

privileges, did not qualify as “adverse action”).

       Here, Reynolds-Bey alleges that Kingsbury searched him (either once or twice in quick

succession) and used a racial slur and a thinly-veiled threat in retaliation for Reynolds-Bey’s

protected conduct. Although this is a close issue, we find that the alleged events could constitute

action sufficient to deter a prisoner of ordinary firmness from engaging in protected activities in the

future.10 A single shakedown, unaccompanied by excessive use of force, verbal threats, a pattern of


       10
         It is immaterial that Reynolds-Bey was not himself deterred from further First Amendment-
protected activity, seen in his continued filing of grievances and other communications. “[T]he issue

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

previous questionable shakedowns or other such factors, would not meet the adverse action standard.

See Tate, 85 F. App’x at 417. Here, however, Reynolds-Bey further asserts that Kingsbury “use[d]

. . . racial threats to advocate physical violence.” (Pro Se Appellant Br. 9.) Although the alleged

threats of violence or other retaliation were not explicit, the words Reynolds-Bey attributes to

Kingsbury can be construed as an implicit, and nontrivial, threat. First, the use of racial slurs by an

individual in a position of authority is repugnant and often carries with it an implicit threat of

violence. Cf. Ward v. Washington Mut., No. 03 C 3566, 2004 WL 2534628, at *3 (N.D. Ill. Sept.

30, 2004) (in workplace racial discrimination claim, noting that the use of “odious [racial] epithets

. . . reasonably could have conjured up disturbing episodes from our society's checkered history of

inter-racial relations”). Second, Kingsbury’s alleged statements that Reynolds-Bey “will always stay

on my list” (Am. Compl. ¶ 27) and that “Reynolds was the one” (Grievance No. OTF- 04-06-0361-

18B), as well as his purported reference to the district court decision mentioning Kingsbury (Am.

Compl. ¶ 57(b)), could reasonably be interpreted by a person of ordinary firmness as a serious

threat–particularly when coupled with the dining hall searches. The standard set out in Thaddeus-X

therefore leads to the conclusion that the district court erred in finding that Reynolds-Bey failed to

raise a genuine issue of material fact as to the second element of the retaliation test. See Thaddeus

X, 175 F.3d at 398 (“[W]hile certain threats or deprivations are so de minimis that they do not rise

to the level of being constitutional violations, this threshold is intended to weed out only




is whether a person of ordinary firmness would be deterred, not whether [Plaintiff] himself actually
was deterred.” Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007).

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed to

proceed past summary judgment.”).

        The third element of the retaliation standard requires a showing that “there is a causal

connection between elements one and two–that is, the adverse action was motivated at least in part

by the plaintiff's protected conduct.” Id. at 394. This is a subjective test, looking to the defendant’s

intent. Id. at 399. The magistrate judge found that Reynolds-Bey “alleges that he was searched in

retaliation for his long-concluded lawsuit, in which Kingsbury was not a defendant. Ascribing cause

and effect in these circumstances would be far-fetched.” (R&R 7, R. 104.) The lack of temporal

proximity and the fact that Kingsbury was not a party to the 2001 suit do tend to cut against the

existence of a causal connection.

        However, temporal proximity by itself is not sufficient to show a causal connection, and there

is no reason to think it is strictly necessary either. See Smith v. Campbell, 250 F.3d 1032, 1038 (6th

Cir. 2001) (“[E]vidence [of temporal proximity] alone is not sufficient to meet [plaintiff’s] burden

to show that the filing of grievances was a substantial or motivating factor for his transfer.”).

Further, although three years had passed since Reynolds-Bey filed his original suit, the time between

when the district judge entered final judgment in that suit and the alleged retaliatory incident was

only one year, and the Sixth Circuit did not issue its ruling in the case until April 8, 2004, less than

three months before the incidents at issue here. Additionally, Reynolds-Bey offers an explanation

for the time lag between the protected activity and the allegedly retaliatory action: Kingsbury was

previously employed at another MDOC facility and only had occasion to interact with Reynolds-Bey

once he began working at the Boyer Road facility. Upon encountering Reynolds-Bey at the new

                                                  21
No. 09-1472
Reynolds-Bey v. Harris-Spicer

facility, the incident in question allegedly took place. The report and recommendation also failed

to credit Reynolds-Bey’s allegation that Kingsbury made specific reference to the protected

activity–the 2001 suit–when he conducted the shakedown and used the racial slur.11 While the

magistrate judge made much of the fact that Kingsbury was not a named defendant in the 2001 suit,

it is unclear why this should be dispositive. Kingsbury’s name was indeed mentioned in the opinion

issued in that case, and Reynolds-Bey alleges on appeal that Kingsbury was upset because the suit

was filed against his “friends.”

       “Once the plaintiff has met his burden of establishing that his protected conduct was a

motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant

can show that he would have taken the same action in the absence of the protected activity, he is

entitled to prevail on summary judgment.” Thaddeus-X, 175 F.3d at 399. The plaintiff can

demonstrate a causal connection using circumstantial evidence. Goad v. Mitchell, 297 F.3d 497, 505

(6th Cir. 2002); Thaddeus-X, 175 F.3d at 399-400. Where a plaintiff sets forth “specific,

nonconclusory allegations” of retaliation “that could support a jury verdict at trial,” the defendant

cannot carry his or her burden at summary judgment by offering mere “summary denials.”

Thaddeus-X, 175 F.3d at 399. Kingsbury’s evidence in support of his motion for summary judgment



       11
           Reynolds-Bey’s amended complaint asserts that Kingsbury stated that “Niggers and litigants
like you will always stay on my list and you can write that in any grievance or tell the court that.”
(Am. Compl. ¶ 27.) His amended complaint further alleged that Kingsbury made reference to the
previous lawsuit during the events in question. (Id. ¶ 57(b).) In his appellate brief, Reynolds-Bey
for the first time additionally alleges that Kingsbury called Reynolds-Bey “the same N. . . who filed
a lawsuit in 2001 against other prison guards that were his friends.” (Pro Se Appellant Br. 9.) That
statement is not properly before this Court because it was introduced for the first time on appeal.

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No. 09-1472
Reynolds-Bey v. Harris-Spicer

consists of his own affidavit, which states that “Prisoner Reynolds . . . claims that I had used a racial

slur toward him. This allegation is a complete and total fabrication.” (Br. in Supp. of Def. Mark

Kingsbury’s Mot. for Summ. J., Ex. A at 1.) Kingsbury further states that “Prisoner Reynolds . . .

also claims that I conducted a shakedown as a form of harassment. Prisoners routinely complain

about shakedowns and often consider them harassment. It is a requirement of my job to conduct

shakedowns . . . .” (Id. at 2.) This evidence consists of precisely the type of summary denial at issue

in Thaddeus-X. See Thaddeus-X, 175 F.3d at 384 (describing defendants’ denials); id. at 399-400

(discussing summary judgment standard with regard to causal connection element of prison

retaliation claims). Therefore, Kingsbury has failed to rebut Reynolds-Bey’s allegations that a causal

connection existed.

        Accordingly, we reverse the district court’s grant of summary judgment to Kingsbury and

remand for further proceedings on this claim.

        E. CHALLENGE TO DISTRICT COURT ORDER ALLEGEDLY LIMITING PLEADINGS
        TO THE ISSUE OF EXHAUSTION

        Finally, Reynolds-Bey alleges that the district court ordered that his pleadings be limited to

the exhaustion issue but then unfairly granted summary judgment to Harris-Spicer on the basis of

absolute immunity rather than exhaustion, without giving Reynolds-Bey a chance to argue issues

other than exhaustion. Reynolds-Bey does not provide a citation to the record identifying such an

order of the district court. The only order that could conceivably form the basis of Reynolds-Bey’s

objection is an order entered on April 10, 2007 that directed Defendants, if they wanted to argue that

Reynolds-Bey had failed to exhaust his administrative remedies, to reply to Reynolds-Bey’s amended


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No. 09-1472
Reynolds-Bey v. Harris-Spicer

complaint by filing a motion for summary judgment limited to the exhaustion defense only. That

order constrained Defendants, not Reynolds-Bey. It appears that his argument is predicated on a

misunderstanding of the district court’s order.

       Reynolds-Bey requests that the case be remanded so that the district court can determine

whether his claims against Harris-Spicer have been exhausted. The district court addressed this issue

in its response to Reynold’s-Bey’s objection to the magistrate judge’s report and recommendation:

       The Report and Recommendation explains that Mr. Reynold’s challenge of
       Defendant Harris-Spicer’s July 2004 decision finding him guilty of a major
       misconduct is non-grievable. But, as the Report and Recommendation correctly
       points out, this is because the hearing officer is entitled to absolute immunity for
       claims related to her decision. The Report and Recommendation thus addresses the
       exhaustion issue, and also makes it clear that there is no viable claim against Ms.
       Harris-Spicer because she is entitled to absolute immunity for her decision as a
       hearing officer.

(Order 3, R. 101.) The magistrate judge’s finding that the complaint against Harris-Spicer is non-

grievable necessarily means that the claim is unexhausted, because a non-grievable issue cannot form

the basis of a properly exhausted administrative grievance. Whether the issue is non-grievable

because hearing officers have absolute immunity, or whether immunity is an alternative ground for

granting summary judgment is immaterial. There is no ground for remanding the case to further

address exhaustion of the claim against Harris-Spicer.

                                                  III

       For the reasons stated above, we AFFIRM IN PART and REVERSE AND REMAND IN

PART. We AFFIRM the district court’s determination that Hearing Officer Harris-Spicer is entitled

to absolute immunity and that Reynolds-Bey’s grievances (excluding the grievances against


                                                  24
No. 09-1472
Reynolds-Bey v. Harris-Spicer

Kingsbury and Grievance OTF-05-03-00153-28E) are unexhausted for purposes of the PLRA. We

REVERSE the grant of summary judgment on the issue of the exhaustion of Grievance OTF-05-03-

00153-28E and REMAND for consideration of the merits of the retaliation claim arising out of that

grievance. We REVERSE the district court’s grant of summary judgment in favor of Kingsbury on

the First Amendment retaliation claim and REMAND for further proceedings on that claim.




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