                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 06a0200n.06
                                Filed: March 27, 2006

                                           No. 04-2218

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


TERRY PACK,                                            )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
                                                       )   THE EASTERN DISTRICT OF
BILL MARTIN, WARDEN, et al.,                           )   MICHIGAN
                                                       )
       Defendants-Appellees.                           )


Before: SILER and CLAY, Circuit Judges; CARR, District Judge.*

       SILER, Circuit Judge. Plaintiff Terry Pack, a pro se Michigan prisoner, appeals the district

court’s judgment dismissing his action under 42 U.S.C. §1983. Pack’s complaint alleged various

violations of his constitutional rights by prison officials relating to injuries he sustained while

performing kitchen work within the prison. Each defendant moved to dismiss for failure to exhaust

administrative remedies as required by 42 U.S.C. § 1997e and for failure to state a claim. The

district court granted motions to dismiss as to all defendants. We AFFIRM.

                                         BACKGROUND

       In 2000, Pack was working as a cook in the Ryan Correctional Facility kitchen and suffered

second and third degree burns while attempting to drain hot hamburger meat. He complains that his



       *
        The Honorable James G. Carr, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 04-2218
Pack v. Martin

Eighth and Fourteenth Amendment rights were violated by Michigan Department of Corrections

(MDOC) officials for denying him proper medical treatment after his injuries were sustained. This

argument appears to rely on facts indicating that at times, Pack disagreed with the type and/or

amount of medical treatment provided by MDOC officials. He also claims his Eighth and

Fourteenth Amendment rights were violated by MDOC officials for creating an unsafe work

environment. Finally, he complains that officials retaliated against him in violation of the First

Amendment by terminating him from his prison job.

       The magistrate judge recommended dismissal of the MDOC defendants, and the district court

adopted the recommendation, dismissing all defendants.

                                             ANALYSIS

         Pack appeals the district court’s decision on the grounds listed hereafter.

                                     1. Failure to State a Claim

       This court reviews de novo a district court’s dismissal of an action for failure to state a claim.

Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a

claim. Craighead v. E.F. Hutton & Co., 899 F.3d 485, 489-90 (6th Cir. 1990). Although pro se

complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), it is well-

established that “conclusory, unsupported allegations of constitutional deprivation do not state a

claim.” Ana Leon T. v. Fed. Res. Bank, 823 F.2d 928, 930 (6th Cir. 1987).

       In order to state a valid claim under the Eighth Amendment or 42 U.S.C. § 1983, a plaintiff

must, at the least, state facts alleging that a defendant, acting under color of state law, displayed




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Pack v. Martin

deliberate indifference for his constitutional rights, for a serious medical need, or for some other

federally protected right. See Gomez v. Toledo, 446 U.S. 635, 639-41 (1980).

       Pack fails to state with specificity a set of facts that give rise to an Eighth Amendment or a

§ 1983 claim. Nowhere in his complaint or briefs to this court did Pack proffer more than

“conclusory, unsupported allegations” of wrongdoing by defendants. Because no claims have been

established, the district court’s dismissal was appropriate.

       Even assuming that Pack stated sufficient facts to establish an Eighth Amendment or § 1983

claim, such facts would not give rise to an Eighth Amendment or other constitutional violation. If

an Eighth Amendment claim is based on official acts other than criminal penalties, the offending acts

must reflect an “unnecessary and wanton infliction of pain” to fall within the ambit of prohibited

conduct. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Such a claim encompasses both an objective

and subjective component. The objective component requires that the pain be sufficiently serious

and in contravention of contemporary standards of decency. Brown v. Bargery, 207 F.3d 863, 867

(6th Cir. 2000). The subjective component requires the plaintiff to prove that prison officials had

“a sufficiently culpable state of mind.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

To be sufficiently culpable, the official must know of and disregard an excessive risk to the

prisoner’s health or safety. Id. Deliberate indifference should establish the wantonness necessary

to satisfy the subjective component. Farmer, 511 U.S. at 836.

       The party asserting a claim that medical care received was lacking or inadequate bears the

burden of proving that the decision to provide no, or substandard, medical care was deliberate or

“knowing.” Bargery, 207 F.3d at 867. Whatever a searching review of materials provided by Pack

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No. 04-2218
Pack v. Martin

on appeal might reveal about the relative judgments of prison officials in administering his post-

injury medical care, well-pled evidence that would satisfy this burden is not provided.

        A similar analysis, applied to Pack’s First Amendment retaliation claim, suggests affirmance

of the district court’s dismissal for failure to state a claim. To establish a First Amendment

retaliation claim, Pack is required to prove that: (1) he engaged in protected conduct; (2) an adverse

action was taken against him that would deter a person of ordinary firmness from continuing to

engage in such conduct; and (3) there is a causal connection between the adverse action and his

protected conduct. Mohammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004). Although Count 16 of

his Complaint states that “[t]he prison retaliated against Pack,” Pack fails to allege both a set of facts

that would support a claim of First Amendment retaliation and a causal connection necessary to

satisfy this court’s test for retaliation claims.

                           2. Failure to Exhaust Administrative Remedies

        This court reviews de novo a district court’s dismissal of an action for failure to exhaust

administrative remedies. Curry v. Scott, 249 F.3d 493, 503 (6th Cir. 2001).

        The Prisoner’s Litigation Reform Act (PLRA) requires a prisoner to exhaust all internal

administrative remedies before filing suit under § 1983. 42 U.S.C. § 1997e(a); see Knuckles El v.

Toombs, 215 F.3d 640, 642 (6th Cir. 2000). Exhaustion is mandatory. See 42 U.S.C.§ 1997e(a)

(“No action shall be brought . . . by a prisoner . . . until such administrative remedies as are available

are exhausted”). The prisoner has the burden of demonstrating that he has exhausted these remedies.

Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). To satisfy this statutory requirement, a

prisoner should attach a copy of applicable administrative decisions to his complaint or “describe

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Pack v. Martin

with specificity the administrative proceeding and its outcome in order to satisfy his burden of proof

on this requirement.” Knuckles El, 215 F.3d at 642 (footnote omitted). If a court is satisfied that

an action fails to state a claim upon which relief can be granted, the court may dismiss the action

without first requiring the exhaustion of such remedies. 42 U.S.C. § 1997e(c)(2).

       Pack failed to attach to his complaint copies of such administrative decisions demonstrating

exhaustion. He also failed to describe with specificity the administrative proceedings and their

outcomes in order to demonstrate exhaustion of his claims. He argues that because he made an

effort to exhaust (some of) his grievances by appealing them through the Michigan Department of

Corrections Grievance Procedure Steps 1, 2, and 3, he has satisfied the PLRA despite “frustration”

of his grievances by prison officials. Yet Pack fails to explain how and why prison officials

“frustrated” his internal administrative appeals process; importantly, he failed to explain such

conduct in his complaint. On these grounds, the district court’s order dismissing Pack’s claims for

failure to exhaust should be affirmed.

       Even assuming that Pack did exhaust his internal administrative procedures, the district court

may still dismiss a claim, without requiring exhaustion, for failure to state a claim upon which relief

can be granted. Because Pack failed to state a claim, dismissal of his action was proper nonetheless.

                          3. District Court’s Review of Recommendation

       We review a district court’s consideration of a magistrate judge’s recommendation of

dismissal of an action for failure to exhaust administrative remedies de novo. Massey v. City of

Ferndale, 7 F.3d 506, 509 (6th Cir. 1993); see also 28 U.S.C. §636(b)(1)(C). Therefore, Pack’s final

claim of error necessarily fails.

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Pack v. Martin

       AFFIRMED.




                   -6-
No. 04-2218
Pack v. Martin

       CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in the

majority’s judgment insofar as it affirms the district court’s dismissal of Plaintiff’s claims against

Respondents Valley, Williamson, Thomas, Brown, Butler, Reed, Pasard, Short, Martin, Mustafa,

Deputy Smith, Barbee, Behrman, O’Brien, Freed, Tate, Sermo, Jamrog, Bell, Klee, Oswalt, Butts,

Epps, Franklin, Gladis, Roggnabuck, Dr. Barbara Smith and Detroit Receiving Hospital. I dissent

from the remainder of the majority’s judgment, however, because Plaintiff both exhausted the prison

grievance procedures and stated a claim for relief as to Respondents Johnson, Nobles, Correctional

Medical Services, Inc. (“CMS”), and Metzmaker. I would therefore REVERSE the portion of the

district court’s order dismissing Plaintiff’s claims against Respondents Johnson, Nobles, CMS, and

Metzmaker.

                                              I.
                                         BACKGROUND

       The case arises out of an accident that occurred on May 5, 2001 at Ryan Correctional Facility

(“RCF”). Plaintiff, an inmate of RCF, was working in the kitchen preparing dinner.                He

encountered difficulty straining grease from hamburger meat and unplugged the kettle to facilitate

drainage in a manner RCF staff allegedly instructed inmates to use. While unplugging the kettle,

grease spurted out and hit Plaintiff’s hands burning through his rubber gloves. Because of his burnt

hand and a broken handle, Plaintiff was unable to close the kettle valve. Plaintiff backed away from

the kettle to avoid the grease. While backing away he hit a table and fell to the ground. Several

gallons of boiling “grease water” landed on Plaintiff causing second and third degree burns.

Plaintiff was trapped between two tables and unable to get off the floor because it was too slippery.



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Pack v. Martin

He alleges that he screamed for help but that no supervisory staff came. Eventually, another inmate,

Larry Anthony, helped Plaintiff off the floor and Plaintiff went to RCF’s Health Services.

       From Health Services, Plaintiff was rushed to Detroit Receiving Hospital’s (“DRH”)

emergency room where DRH doctors treated him. According to Plaintiff, the doctors refused to

allow him to remain at the hospital despite being informed by RCF transport officers that RCF

would be unable to adequately care for Plaintiff’s burns. Thus, Plaintiff returned to RCF that same

evening, where RCF nurses informed him that the prison’s doctor was on vacation and that there was

no doctor at RCF to treat Plaintiff. Thereafter, the nurses sent Plaintiff back to his prison cell.

       The next morning, Plaintiff awoke in severe pain. Resident Unit Officer Ponzo called for

emergency medical assistance but no prison officials responded. Eventually, Plaintiff was forced

to find his way back to Health Services. Plaintiff informed the nurses at Health Services that he was

in severe pain. Additionally, he informed the nurses that his that Food Services was not feeding him

the special diet prescribed by the doctors. The nurses again rushed him to DRH.

       DRH again released Plaintiff and sent him back to RCF. At RCF, Plaintiff requested the pain

medication, Vicaden, prescribed by the DRH doctors. A prison nurse informed Plaintiff that there

was no doctor available to fill the prescription. Instead, she gave him motrin and sent him back to

his cell where he was forced to use the general prison population’s facilities with open wounds.

       In an attempt to remedy the situation, Plaintiff contacted family members and his former

appeal attorney, Susan Meinberg. Susan Meinberg contacted the Health Care Supervisor at RCF.

On June 12, 2000, RCF officials sent Plaintiff to DRH’s outpatient treatment center. Because

Plaintiff continued to have problems, on July 31, 2000, Plaintiff filed grievance RRF-00-0701406-

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Pack v. Martin

12Z, alleging that numerous prison officials were denying him proper medical treatment. In

particular, the grievance named RCF’s deputy warden, Johnson, RCF’s assistant deputy warden,

Nobles and CMS, RCF’s contract provider of medical services. RCF denied the grievance and

Plaintiff appealed it all the way through the Michigan Department of Corrections three tier process,

eventually receiving a denial of his grievance at stage III.

       On May 9, 2001, Plaintiff was transferred from RCF to Gus Harrison Facility (GHF).

Plaintiff continued to have problems and continued to file grievances at GHF. According to

Plaintiff, a GHF Resident Unit Manager, Metzmaker, asked him to “sign off” on several of the

grievances that he filed. When Plaintiff refused to withdraw his grievances, Metzmaker placed him

in “lock up.” Only July 31, 2001, Plaintiff filed grievance ARF 01-06-01137-12c4 complaining of

Metzmaker’s behavior. The local prison authorities denied the grievances at stages I and II and

Petitioner mailed a stage III appeal to the central prison authority in Lansing. Petitioner claims that

he never received a response to this stage III appeal, but submitted a letter from GHF’s librarian

indicating that he mailed the appeal to Lansing.

                                               II.
                                           DISCUSSION

A.     Standard of Review

       This Court reviews a district court’s dismissal of a prisoner’s § 1983 action for failure to

exhaust administrative remedies and for failure to state a claim de novo. Harbin-Rey v. Rutter, 420

F.3d 571, 575 (6th Cir. 2005); Boyd v. Corrections Corp. of Am., 380 F.3d 989, 993 (6th Cir. 2004).

“In determining whether a prisoner has failed to state a claim, we construe his complaint in the light

most favorable to him, accept his factual allegations as true, and determine whether he can prove
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Pack v. Martin

any set of facts that would entitle him to relief.” Harbin-Rey, 420 F.3d at 575. Additionally, this

Court construes a pro se plaintiff’s complaint liberally, Lillard v. Shelby Bd. of Educ., 76 F.3d 716,

726 (6th Cir. 1996), in order to do justice to both parties.

B.      Exhaustion Under § 1997e of the PLRA

       1.        Legal Framework

       Section 1997e of the PLRA mandates that inmates at correctional facilities exhaust available

administrative remedies before filing suit over "prison conditions" in federal court. The PLRA’s

exhaustion requirement is not discretionary and admits no exceptions. Porter v. Nussle, 534 U.S.

516 (2002). This Court has interpreted the PLRA’s exhaustion requirement to be satisfied if a

Plaintiff files a grievance granting the prison “fair notice” of the claim and appeals the denial of the

grievance to the highest possible level. Burton, 321 F.3d at 575; see also Thomas v. Woolum, 337

F.3d 720, 727, 733 (6th Cir. 2003). To give fair notice of a claim, a plaintiff must allege specific

acts of mistreatment or misconduct and identify the responsible party. Burton, 321 F.3d at 575. In

the Michigan grievance system, a defendant must be identified at stage I of the grievance

proceedings to be properly exhausted. Id. at 574. If a plaintiff does not know the responsible party’s

name, the plaintiff must give sufficient information to allow the prison to identify the party. See

Thomas, 337 F.3d at 734. The fair notice standard, however, does not require a prisoner to allege

“a specific legal theory or facts that correspond to all the required elements of a particular legal

theory.” Burton, 321 F.3d at 575. Nor does it require a plaintiff to comply with the prison’s time

limits for filing claims. Thomas, 337 F.3d at 734 As this Court explained in Thomas, under the fair

notice standard the prison must have the opportunity to resolve a plaintiff’s problems; however, if

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the prison declines to address the problems for procedural reasons the plaintiff should not be

penalized. Id.

       Moreover, the PLRA only requires exhaustion of available remedies. While this requires

plaintiffs to use grievance procedures even where they believe the procedure to be ineffectual or

futile, it does not require a plaintiff to use remedies not reasonably available. See Boyd, 380 F.3d

at 998. Thus, this Court has held that where a plaintiff files a formal written grievance and does not

receive a timely response, that plaintiff has exhausted all available remedies. Id. at 996. A plaintiff

is not expected to appeal a grievance to which he has not received a response and it is not the

plaintiff's burden to continually inquire after a properly filed grievance. Id.

       Where a plaintiff exhausts his remedies as to one Respondent but not as to another, in a so-

called mixed petition, Sixth Circuit precedent prohibits district courts from dismissing the entire

action. Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999). In Hartsfield, this Circuit declined to

dismiss exhausted claims despite the presence of unexhausted claims in the plaintiff's action. Id.

Later Sixth Circuit cases, however, have declined to apply Hartsfield and have dismissed mixed

petitions. See Bey v. Johnson, 407 F.3d 801 (2005). Nonetheless, under Sixth Circuit Rule 206(c)

“‘[r]eported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules

a published opinion of a previous panel. Court en banc consideration is required to overrule a

published opinion of the court.’” Id. at 810 (Clay, J. dissenting). Consequently, this Court must

apply the Hartsfield rule and uphold any claims that a plaintiff exhausts.

       Moreover, the rationale of Sixth Circuit cases requiring dismissal of mixed petitions is

unpersuasive. The cases state that because 1997e refers to “action” as opposed to “claim,” a

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Pack v. Martin

plaintiff’s remedies must be exhausted as to the entire action. Id. at 807. Section 1997e, however,

states, “[n]o action shall be brought with respect to prison conditions under § 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “‘[I]t does not

follow that the only possible response to the impermissibility of the bringing of the action is to

dismiss it in its entirety- to kill it rather than to cure it.’” Bey, 407 F.3d at 811 (Clay J., dissenting)

(quoting Ortiz v. McBride, 380 F.3d 649, 657 (2d Cir.2004)). Additionally, § 1997e uses the terms

“action” and “claim” interchangeably, weakening any argument that the concepts are

distinguishable. Id. at 811 (Clay J., dissenting) ( citation omitted). Finally, it is highly unlikely that

dismissing mixed petitions is judicially expedient and decreases piecemeal litigation. Id. at 812.

“‘[P]risoners are likely to simply amend their complaints to eliminate the unexhausted claims and

refile,’ leaving the district court "'with exactly the same claims that could have been resolved at the

outset.’” Id. at 812 (citing Jenkins v. Toombs, 32 F. Supp. 2d 955, 959 (W.D.Mich.1999)). The

three strikes rule contained in 28 U.S.C. § 1915(g) and filing fees are more likely to discourage

prisoners from filing multiple and piecemeal actions than any rule requiring dismissal of mixed

petitions. Id. at 812 (citing Wilson v. Yaklich, 148 F.3d 596, 602 (6th Cir.1998)).

        2.       Plaintiff Has Exhausted His Claims Against Johnson, Nobles, CMS, and
                 Metzmaker

        Plaintiff has exhausted his administrative remedies as to Johnson, Nobles, CMS, and

Metzmaker. On July 31, 2000, Plaintiff filed grievance RRF-00-7-1406-12Z expressly naming




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Pack v. Martin

Johnson, Nobles and CMS, and alleging misconduct on their part.1 Additionally, Plaintiff appealed

grievance RRF-00-7-1406-12Z all the way through stage III of the appeals process. In grievance

RRF 00-07-01406-12Z, Plaintiff states that he saw Johnson and Nobles in RCF's hallway on June

8, 2000, while a nurse was changing his bandages. According to Plaintiff, he called out to Johnson

and Nobles and informed them that he needed supplies to treat his burns, including bandages and

ointment. Plaintiff asked Johnson and Nobles if his family could send him supplies because the

prison staff was unable to properly treat him due to the lack of necessary supplies. Johnson

informed Plaintiff that his family could not send him supplies because it would be a security breach

but that she would personally bring him the needed supplies the next day. According to Plaintiff,

Johnson never brought him the necessary supplies and he continued to have problems with medical

treatment. Grievance RRF-00-7-1406-12Z also explicitly refers to problems with CMS. The

grievance states that Dr. Williamson informed Plaintiff that his therapeutic sleeve had not arrived

because CMS refused to pay for it. Plaintiff’s allegation was sufficient to put the prison staff on

notice that it needed to contact CMS about the claim.

       Similarly, Plaintiff exhausted his administrative remedies as to Metzmaker. Plaintiff filed

a grievance naming Metzmaker and specifying actual misconduct, and took all available appeals.

Grievance ARF 01-07-01326-17B states that Metzmaker took Plaintiff’s property and retaliated

against him for filing grievances. Although Plaintiff did not submit a copy of his stage III appeal,


       1
         The magistrate judge erroneously determined that Plaintiff failed to provide documentation
of this grievance, mis-citing the grievance as RRF 00-07-1406-2f instead of RRF 00-07-1406-12z.
(Rep. & Rec., February 18, 2003, at 15-16.) Similarly it erroneously stated that CMS was not named
in RRF 00-07-1406-12z. (Op. Sept. 9, 2003, at 9.) Plaintiff did object to both findings and attached
a copy of RRF 00-07-1406-12z to his objections.
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Pack v. Martin

he alleges that he is unable to because he never received a response. He did, however, submit a

signed letter from the prison librarian, Mary Gray, stating that she received grievance ARF 01-07-

01326-17B to mail to Lansing. (Am. Compl. Exh. B at 191.) Because only stage III grievances are

processed in Lansing, the letter from Ms. Gray is sufficient evidence of Plaintiff's attempt to take

his stage III appeal. Thus, Plaintiff, exhausted his remedies as to Metzmaker.

C.     Plaintiff States Eighth Amendment Claims Against Johnson, Nobles, and CMS

       To state a claim for relief under the Eighth Amendment for a prison worker's failure to

provide adequate medical care, a plaintiff must allege that the prison worker was 1) deliberately

indifferent, 2) to a serious medical need. Estate of Carter v. City of Detroit, 408 F.3d 305, 311 (6th

Cir. 2005); Blackmore v. Kalamzoo County, 390 F.3d 890, 895 (6th Cir. 2004.) The first component,

deliberate indifference, is subjective. Estate of Carter, 408 F.3d at 311. The plaintiff must establish

that the prison worker was aware of the plaintiff's condition, and nonetheless, failed to act. Id. The

second component, a serious medical need, is objective. Id. It requires the plaintiff to demonstrate

the “existence of a sufficiently serious medical need.” Id. “Where a plaintiff's claims arise from an

injury or illness so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention, the plaintiff need not present verifying medical evidence of serious medical need.”

Blackmore, 390 F.3d at 899.

       In this case, Plaintiff stated a claim for relief under the Eighth Amendment against Johnson,

Nobles and CMS because Plaintiff pleaded facts sufficient to establish deliberate indifference and

a serious medical need. Plaintiff pleads facts indicating that Johnson, Nobles and CMS were aware

of his second and third degree burns. Specifically, Plaintiff claims that he saw Johnson and Nobles

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Pack v. Martin

in the hallway while he was recovering from his burns. He explained that he was not receiving

adequate medical care. Yet, Johnson and Nobles took no action despite their postitions as RCF’s

deputy warden and assistant deputy warden. Similarly, CMS was aware of Plaintiff's burn because

Plaintiff's doctor, Dr. Williamson, sought approval for the costs of Plaintiff's burn care from CMS.

Thus, Johnson, Nobles and CMS possessed subjective awareness of Plaintiff’s injury sufficient to

establish deliberate indifference. Moreover, it is indisputable that treatment for second and third

degree burns qualifies as a serious medical need. A layperson would recognize the necessity for

treatment in Plaintiff's case, and thus, Plaintiff need not present verifying medical evidence, although

he did submit such evidence to the court. Therefore, this Court should not dismiss Plaintiff's Eighth

Amendment claims against Johnson, Nobles and CMS for failure to state a claim.

D.      Plaintiff States a First Amendment Claim Against Metzmaker

       Plaintiff states a First Amendment retaliation claim against Metzmaker. To state a claim for

retaliation under the First Amendment, a plaintiff must allege: (1) that he or she engaged in protected

conduct; (2) that he or she was subjected to adverse action; and (3) that the protected conduct was

a substantial motivating factor for the adverse action. Thaddeaus-X v. Blatter, 175 F.3d 378, 395

(6th Cir. 1999) (en banc). Once the plaintiff establishes that the protected conduct was a substantial

motivating factor for adverse action, the burden shifts to the defendant to prove by a preponderance

of the evidence he or she took the adverse action for legitimate reasons. Id. In grievance ARF 01-

07-01326, Plaintiff alleges that Metzmaker put him in “lock up” for refusing to “sign off” on

grievances. (Compl. Exh. A. at 115.) Plaintiff has a First Amendment right to file grievances.

Thaddeaus-X, 175 F.3d at 395. This right must include the right to refuse to withdraw the grievance

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or agree that the problems described in the grievance no longer exist or have been solved or the right

has no meaning. Thus, Plaintiff has alleged that he engaged in protected conduct. Next, “lock up”

is clearly an adverse action.     Finally, Plaintiff alleges that his refusal to “sign off” was the

motivating factor for Metzmaker's decision to place him in “lock up.” To survive a motion to

dismiss for failure to state a claim, Plaintiff need only allege causation. He need not prove causation

at this point. Thus, Plaintiff stated a claim against Metzmaker under the First Amendment.

                                             III.
                                        CONCLUSION
       For the foregoing reasons, I would AFFIRM the district court’s order dismissing Plaintiff’s

claims as to Respondents Valley, Williamson, Thomas, Brown, Butler, Reed, Pasard, Short, Martin,

Mustafa, Deputy Smith, Barbee, Behrman, O’Brien, Freed, Tate, Sermo, Jamrog, Bell, Klee, Oswalt,

Butts, Epps, Franklin, Gladis, Roggnabuck, Dr. Barbara Smith and Detroit Receiving Hospital but

REVERSE the order as the claims against Respondents Johnson, Nobles, CMS and Metzmaker.




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