Andre Porter v. Dave Dormire, 2015 U.S. App. LEXIS 4699

In December 2009 a letter alleging anthrax with Porter’s return address was found; a manager believed Porter wrote it though an investigation pointed to a different inmate and recommended handwriting analysis.
Porter was transferred earlier after threats by another inmate; manager and warden initially took no action after the investigation.
Porter filed an unrelated § 1983 suit in March 2010; in June 2010 the manager and warden were dismissed from that suit.
In July 2010 the manager lodged a conduct violation accusing Porter of the anthrax letter; Porter was found guilty at a hearing, placed in administrative segregation, then later found not guilty at a second hearing but the warden reinstated segregation.
Porter pursued the MDOC three-step grievance process (IRR → grievance → appeal). He filed an IRR and grievance timely but received untimely and partial responses; a final written grievance response did not arrive until October 2011, by which time he had checked “I Accept this Decision” rather than “I Appeal this Decision.”
Porter sued pro se under § 1983 alleging the conduct violation and segregation were unlawful retaliation; the district court dismissed for failure to exhaust and granted summary judgment for defendants; on appeal the panel affirmed dismissal but vacated the summary judgment and remanded with instructions to dismiss without prejudice for nonexhaustion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an available administrative remedy existed	Porter contends MDOC’s delays and failures made remedies unavailable	Defendants argue grievance/appeal process remained available and unused	Remedy was available; Porter failed to exhaust
Whether Porter exhausted by filing a November 2010 appeal about lack of response	Porter says his November 2010 filing exhausted remedies	Defendants say that appeal only challenged lack of response, not an adverse decision on the merits	Court held the November 2010 filing did not exhaust the required final-stage appeal
Whether accepting the final response precludes further appeal	Porter argues there was no proper decision on the grievance form to accept	Defendants say Porter had opportunity to appeal and affirmatively accepted the decision	Held Porter’s selection of “I Accept this Decision” amounted to abandoning an appeal and ends administrative process
Whether officials’ untimely responses excuse exhaustion	Porter claims officials’ failures prevented utilization of procedures	Defendants maintain delays did not prevent use of the grievance process	Held delays were unjustified but did not render remedies unavailable; no excuse for nonexhaustion

Jones v. Bock, 549 U.S. 199 (exhaustion under PLRA is mandatory)
Torgerson v. City of Rochester, 643 F.3d 1031 (summary judgment standard; view facts for nonmovant)
Burns v. Eaton, 752 F.3d 1136 (exhaustion requires final-stage administrative decision)
Miller v. Norris, 247 F.3d 736 (remedies unavailable when officials prevent utilization)
Lyon v. Vande Krol, 305 F.3d 806 (subjective futility does not excuse exhaustion)
Gibson v. Weber, 431 F.3d 339 (officials’ failure to comply can excuse exhaustion in narrow circumstances)
Sergent v. Norris, 330 F.3d 1084 (untimely response does not automatically make remedies unavailable)
Foulk v. Charrier, 262 F.3d 687 (MDOC refusal to respond can constitute exhaustion in some cases)
Hammett v. Cofield, 681 F.3d 945 (failure to exhaust requires dismissal without prejudice)